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FEDERAL   USURPATION 


FEDERAL   USURPATION 


BY 


FRANKLIN    PIERCE 

OF   THE    NEW   YORK    BAR 

Author  of  "The  Tariff  and  the  Trusts" 


"If,  in  the  opinion  of  the  people,  the  distribution  of  the 
constitutional  powers  be  in  any  particular  wrong,  let  it  be 
corrected  in  the  tuay  which  the  Constitution  designates. 

"  But  let  there  be  no  change  by  usurpation,  for  this,  though 
it  may  in  one  instance  be  the  instricment  of  good,  is  the  ordi- 
nary weapon  by  which  free  governments  are  destroyed^ 

WASHINGTON. 

" //  is  my  duty  and  my  oath  to  maintain  inviolate  the 
right  of  the  States  to  order  and  control  tinder  the  Consti- 
tution their  ffivn  affairs  by  their  own  judgment  exclusively. 
Such  maintenance  is  essential  for  the  presentation  of  that 
balance  of  power  on  which  our  institutions  rest." 

LINCOLN. 


NEW   YORK 
D.   APPLETON    AND    COMPANY 

1908 


Copyright,  1908,  by 
D.   APPLETON   AND  COMPANY 


Published  January,  1908 


TO   MY  WIFE 
ANNA    SHEPARD    PIERCE 

WITHOUT  WHOSE  AID 

THIS   BOOK 

COULD  NOT  HAVE  BEEN  WRITTEN 


"Evil  for  evil,  a  good  despotism  in  a  country  at  all  advanced 

in  civilization  is  more  noxious  than  a  bad  one,  for  it  is  more 

relaxing  and  enervating  to  the  thoughts,  feelings,  and  energies 

of  the  people." 

John  Stuart  Mill. 


"As  we  cannot,  without  the  risk  of  evils  from  which  the  imag- 
ination recoils,  employ  physical  force  as  a  check  on  misgovem- 
ment,  it  is  evidently  our  wisdom  to  keep  all  the  constitutional 
checks  on  misgovemment  in  the  highest  state  of  efficiency,  to 
watch  with  jealousy  the  first  beginnings  of  encroachment,  and 
never  to  suffer  irregularities,  even  when  harmless  in  themselves, 
to  pass  unchallenged,  lest  they  acquire  the  force  of  precedents." 

Macaulay, 


PREFACE 


This  book  is  a  plea  for  the  sacredness  of  the  Consti- 
tution of  the  United  States.  I  do  not  mean  by  this  that 
I  consider  our  Constitution,  framed  a  hundred  and 
twenty  years  ago,  well  suited  to  the  needs  of  our  existing 
government.  Its  rigid  provisions,  its  system  of  checks 
and  balances,  are  an  obstacle  to  popular  government, 
and  they  should  be  radically  changed  by  amendment, 
but  never  by  construction  or  usurpation.  This  book 
was  suggested  by  the  President's  speech  at  Harrisburg 
in  1906,  in  which  he  declared  that  the  power  of  the 
Federal  Government  should  be  increased  "  through  ex- 
ecutive action  .  .  .  and  through  judicial  interpretation 
and  construction  of  law."  A  little  later,  at  the  Pennsyl- 
vania Society  in  New  York,  Mr.  Root,  the  head  of  the 
Cabinet  and  the  close  friend  of  the  President,  declared 
that  if  the  people  desire  it  "  sooner  or  later  construc- 
tions of  the  Constitution  .  .  .  will  be  found "  to  vest 
additional  power  in  the  National  Government.  Hitherto 
governmental  usurpation  generally  has  advanced  by 
silent  and  gradual  attacks  upon  constitutional  safeguards. 
Never  before  in  human  history,  I  believe,  has  the  head 
of  a  constitutional  government  who  had  sworn  to  pro- 
tect, preserve,  and  defend  its  fundamental  provisions 
publicly  advised  their  subversion  "  through  executive 
action  and  through  judicial  interpretation."     In  recent 


X  PREFACE 

days  every  abuse  on  the  part  of  corporations  engaged  in 
interstate  commerce  has  been  eagerly  grasped  by  the 
President  as  the  reason  for  an  encroachment  upon  con- 
stitutional guarantees,  while  every  opposition  to  such  en- 
croachment has  been  seized  as  a  reason  for  a  stronger 
national  government  to  put  down  opposition.  Unless 
the  people  are  stirred  to  a  recognition  of  the  danger  of 
such  usurpations,  they  will  never  be  checked. 

Well-defined  usurpations  of  power  by  the  National 
Government  had  a  commencement  in  our  Civil  War. 
They  gathered  force  during  the  Reconstruction  period, 
but  were  slightly  checked  in  the  administrations  of 
Presidents  Hayes  and  Arthur  and  the  first  administra- 
tion of  Mr.  Cleveland.  In  the  present  administration 
they  have  increased  with  amazing  rapidity.  We  are  told 
by  the  President  that  "  such  interpretation  as  the  in- 
terests of  the  whole  people  demand  "  should  be  given 
to  the  Constitution,  leaving  this  to  be  determined  by  the 
National  Government.  Impelled  by  such  conceptions  of 
constitutional  law,  a  National  Employers'  Liability  Act, 
applying  to  railway  servants,  has  been  passed,  a  Na- 
tional Pure  Food  Law  has  been  enacted,  and  the 
Department  of  Agriculture  now  claims  the  power  of 
"  making  the  standards  of  composition  for  food  prod- 
ucts." About  every  industry,  however  remotely  con- 
nected with  interstate  commerce,  is  sought  to  be  con- 
trolled by  child-labor  laws,  commissions,  or  licenses,  and 
ere  long  we  will  fully  adopt  the  methods  of  Conti- 
nental Europe  by  which  the  local  and  domestic  affairs 
of  the  people  are  under  the  supervision  of  the  central 
government.  Unless  a  determined  body  of  citizens  arise 
and  oppose  such  usurpations,  the  doom  of  our  state  gov- 
ernments is  already  sounded. 

There  is  no  doubt  that  there  is  a  natural  evolution 


PREFACE  xi 

in  our  times  toward  centralization.  A  hundred  agencies 
combine  to  bring  men  and  industries  to  great  central 
points.  This  tendency  cannot  be  stopped,  but  central- 
ization which  results  from  natural  causes  should  be 
sharply  distinguished  from  concentration  of  power 
through  usurpation.  It  is  usurpation  for  the  National 
Government  to  take  over  the  powers  of  the  states 
without  employing  the  proper  means  of  acquiring 
them  through  amendments  to  the  National  Constitu- 
tion. "  State  rights,"  says  President  Roosevelt,  "  should 
be  preserved  when  they  mean  the  people's  rights,  but 
not  when  they  mean  the  people's  wrongs."  Even  Alex- 
ander Hamilton,  the  most  pronounced  advocate  of  a 
strong  centralized  national  government,  entertained  no 
such  conception  of  state  rights  as  this.  In  the  debates 
before  the  New  York  Constitutional  Convention,  he  said : 
"  The  state  governments  are  essentially  necessary  to  the 
form  and  spirit  of  the  general  system.  As  long,  there- 
fore, as  Congress  have  a  full  conviction  of  this  necessity, 
they  must,  even  upon  principles  purely  national,  have 
as  firm  an  attachment  to  the  one  as  to  the  other.  This 
conviction  can  never  leave  them,  unless  they  become 
madmen.  While  the  Constitution  continues  to  be  read, 
and  its  principles  known,  the  states  must,  by  every  ra- 
tional man,  be  considered  as  essential,  component  parts 
of  the  Union ;  and  therefore  the  idea  of  sacrificing  the 
former  to  the  latter  is  wholly  inadmissible."  The  diffi- 
culty in  our  day  is  found  in  the  fact  that  when  we 
speak  of  state  rights  the  minds  of  men  naturally  go 
back  to  the  Civil  War  and  the  claims  of  the  South  in 
that  contest.  We  who  oppose  usurpation  by  the  Na- 
tional Government  of  the  rights  of  the  states  plant 
ourselves  upon  the  same  principles  as  those  for  which 
the  North  waged  that  war.     The  National  Government 


xii  PREFACE 

has  no  more  right  to  destroy  the  reserved  powers  of 
the  states  than  the  South  had  to  destroy  the  powers 
delegated  by  the  states  to  the  National  Government. 
The  Constitution  of  the  United  States  secures  to  the 
states  their  reserved  rights  in  the  same  way  that  it  se- 
cures the  rights  delegated  by  the  states  to  the  National 
Government. 

In  each  of  the  chapters  of  this  book,  after  the  first, 
I  have  sought  to  gather  the  facts  illustrating  usurpations 
of  government  at  some  particular  period  or  by  some 
particular  department.  I  am  aware  that  it  may  be  said 
that  the  public  interest  in  such  facts  is  temporary  rather 
than  permanent  and  that  political  parties  will  uncover 
these  facts.  Our  political  parties  to-day  are  mere  politi- 
cal machines  living  upon  the  spoils  of  office  and  giving 
little  heed  to  great  public  questions.  The  leaders  of 
these  parties  deal  in  glittering  generalities,  the  one  seem- 
ing to  favor  centralization  of  power  in  the  National 
Government  and  the  other  espousing  the  cause  of  state 
rights,  but  it  is  apparent  that  they  do  not  widely  differ 
in  reality  as  to  details.  The  very  existence  of  these 
parties  depends  upon  extending  the  power  of  govern- 
ment, multiplying  commissions,  licenses,  offices,  and 
special  privileges.  Exposure  of  usurpations  will  never 
come  from  those  who  profit  by  usurpations. 

The  most  important  public  affairs  are  unknown  to 
the  people.  Law-making  in  the  House  of  Representa- 
tives to-day  is  as  carefully  hidden  in  its  secret  com- 
mittees from  popular  gaze  as  was  the  action  of  the 
Council  at  Venice  in  the  Middle  Ages.  In  January, 
1907,  Mr.  De  Armond  introduced  a  bill  in  the  House 
of  Representatives  conferring  upon  the  President  of  the 
United  States  the  right  to  remove  from  office,  without 
charges  and  without  a  hearing,  any  one  or  all  of  the 


PREFACE  xiii 

twenty-nine  United  States  Circuit  Court  judges  and  the 
eighty-two  District  Court  judges  of  the  United  States 
District  Courts,  and  the  bill  gave  him  the  power  of 
appointment  of  new  judges  in  their  places  by  and  with 
the  advice  and  consent  of  the  Senate.  This  proposed 
bill,  conferring  as  despotic  powers  upon  the  President 
as  was  ever  exercised  by  any  ruler  in  the  history  of  the 
world,  was  so  hidden  from  the  American  people  be- 
hind the  door  of  the  secret  Congressional  committee  that 
probably  not  one  citizen  in  a  hundred  thousand  ever 
heard  of  its  existence. 

The  United  States  Supreme  Court,  recognizing  that 
the  National  Government  is  one  of  delegated  powers, 
recently  decided,  in  the  case  of  Kansas  v.  Colorado,  that 
the  powers  conferred  upon  the  Supreme  Court  were  an 
exception  to  the  rule,  and  that  as  respects  their  judicial 
power  there  was  practically  no  limitation.  Do  the  people 
know  of  this  proposed  law  and  of  the  danger  of  this 
recent  decision  ?  Has  any  alarm  of  danger  been  sounded 
by  political  parties  as  to  these  measures?  Are  such 
measures  questions  only  of  temporary  interest?  Is  there 
anything  which  should  concern  free  men  so  greatly  as 
the  preservation  of  their  freedom?  The  individual  man 
is  the  essential  unit  of  any  society  that  hopes  to  retain 
the  principles  of  growth  and  progress.  His  personal 
liberty  is  the  source  of  personal  initiative  and  national 
wealth  and  strength.  Our  progress  in  wealth  has  de- 
pended more  upon  that  individual  liberty  than  upon  all 
other  causes  combined.  But  liberty  has  higher  ends 
than  to  fire  the  soul  of  the  individual  to  action  and  to 
urge  him  to  the  attainment  of  high  political  ends.  Lord 
Acton  well  said :  "  Liberty  is  not  a  means  to  a  higher 
political  end.  It  is  of  itself  the  highest  political  end." 
Liberty   nourishes  self-respect,   self-reliance,   and   every 


Xiv  PREFACE 

impulse  to  a  higher  life.  It  gives  birth  to  art,  literature, 
and  culture.  It  ever  has  been  the  source  of  all  the 
higher  impulses  and  aspirations  of  men.  On  the  other 
hand,  a  usurping  government  destroys  these  qualities, 
turns  the  attention  of  the  citizen  to  foreign  politics, 
dazzles  him  with  military  glory,  and  destroys  his  aspira- 
tions for  liberty.  Surely  the  importance  to  the  indi- 
vidual man  and  to  our  country  of  the  preservation  of 
liberty  justifies  a  discussion  of  the  present  danger  from 
usurpation  of  power. 

Without  any  desire  to  influence  men's  political  asso- 
ciations, I  have  attempted  in  this  book  to  show  the 
causes  of  present  conditions,  to  arouse  the  citizen  to  an 
appreciation  of,  the  dangers  of  usurpation,  and  to  point 
out  remedies  for  existing  evils  through  amendments  to 
the  Constitution  of  the  United  States,  I  shall  be  happy 
if  this  examination  may  aid  in  any  way  the  present 
growing  interest  in  the  preservation  of  constitutional 
guarantees.  The  age  of  the  birth  of  the  Constitution 
produced  our  greatest  constructive  statesmen.  The 
period  between  1820  and  1850,  when  its  meaning  was 
so  thoroughly  discussed,  called  forth  the  great  powers 
of  Webster  and  Calhoun.  A  nonpartisan  discussion  to- 
day of  the  dangers  which  exist  from  usurpation  may 
happily  lead  to  that  elevation  of  public  character  and 
public  life  which  will  regenerate  political  parties  and 
lead  them  to  make  fighting  issues  on  the  fundamental 
principles  of  government. 

Franklin  Pierce. 
December  i,  1907. 


CONTENTS 


CHAPTER  PAGES 

I. — The  Birth  of  the  Constitution  .  .  .  3-38 
The  checks  and  balances  in  the  Constitution  upon 
popular  government,  3-6;  Democratic  spirit  of 
early  state  governments,  7-8 ;  Causes  of  reaction- 
ary spirit  of  the  Constitution,  8-13  ;  Constitutional 
Convention,  14-21 ;  State  conventions  for  adoption 
of  the  Constitution,  21-22 ;  Powers  conferred  upon 
Congress,  22-24;  No  inherent  powers  in  Congress, 
24-25  ;  Executive  and  judicial  powers,  25 ;  Amend- 
ments to  the  Constitution,  25-28;  Sources  of  the 
Constitution,  29-31;  Local  self-government  in 
New  England  and  paternalism  in  Canada,  31-33; 
Alien  and  Sedition  Laws,  34-36;  Veneration  for 
the  Constitution,  36-37. 

II. — USURPAT19N    IN    the    Civil    War    and    Recon- 
struction Period 4i-7S 

Origin  of  existing  usurpation  found  in  this  period, 
41—42;  Suspension  of  writ  of  habeas  corpus  by 
President  Lincoln  and  imprisonment  of  thousands 
of  Northern  men,  42-46;  Writ  of  habeas  corpus 
suspended  by  a  national  statute  which  was  de- 
clared unconstitutional,  46-50;  Lincoln's  com- 
ments upon  his  acts  of  usurpation,  50-51;  The 
Confiscation  Act,  51-52;  Centralization  through 
National  Bank  and  Tariff  Acts,  52-57;  Attitude 
of  the  President  and  Congress  upon  the  effect  of 
secession,  57-59;  The  Reconstruction  Acts  and 
the  despotic  powers  exercised  by  the  generals  of 
the  Military  Departments,  59-63;  The  Ku  Klux 
Law  and  the  Civil  Rights  Bills  held  unconstitu- 
tional, 65-67 ;    Laws  of  carpetbag  governments 


xvi  CONTENTS 

CHAPTER  PAGES 

declared  unconstitutional,  67-68;  Supervision  of 
elections  in  the  North  by  United  States  marshals, 
69 ;  Ejection  of  legislators  in  Louisiana  by  United 
States  troops,  70-71;  Partisan  spirit  of  recon- 
struction, 74-75. 

III. — Executive  Usurpation 79-121 

Power  of  President  exceeds  that  of  any  constitutional 
monarch,  79-84;  Popular  election  no  restraint  on 
arbitrary  power,  84-86 ;  Separation  of  coordinate 
departments  of  the  national  government,  86-87; 
The  acts  and  criticisms  of  the  President  tend  to 
destroy  the  separate  power  of  the  Judiciary,  87— 
96;  Proposed  bill  giving  the  President  arbitrary 
power  of  removal  of  Federal  judges,  93;  Presi- 
dent's attempts  to  influence  the  action  of  Congress, 
96-99;  States  prompt  to  remedy  evils  in  com- 
parison with  Congress,  99-104;  Opinions  of  Ham- 
ilton and  others  on  state  rights,  104-107 ;  Executive 
pension  order,  107-109;  Collection  of  customs 
duties  in  San  Domingo,  109-iir;  The  seizure  of 
Panama,  11 1 -11 4;  The  discharge  of  negro  troops 
without  trial  by  court-martial,  114-118;  The 
justification  of  usurpation,  1 19-120;  The  un- 
written law  should  preclude  the  President  from 
dictating  his  successor,  1 20-121. 

IV. — Paternalism  and  Imperialism  .  .  .  125-155 
The  universal  seeking  of  aid  from  an  all-powerful 
President  is  a  menace  to  liberty,  125-128;  Gov- 
ernmental favors  to  farmers  and  bankers  and 
their  effect  upon  the  people,  128-132;  Statutes 
considered  a  panacea  for  evils,  133-134;  Race 
suicide,  a  result  of  tariffs  and  trusts,  135-139; 
Effect  of  imperialism  upon  home  institutions, 
139-143 ;  Playing  the  part  of  a  world  power  results 
in  socialism,  143-144;  The  methods  and  charac- 
teristics of  imperialism,  as  described  by  Sir  Henry 
Campbell-Bannerman,  appearing  in  the  United 
States,   145-152;  The   United  States  ruled  from 


CONTENTS  xvii 

JAPTER  PAGES 

Washington  as  France  is  from  Paris,  152-154; 
Growth  of  arbitrary  methods,  154;  Existing  con- 
ditions a  presage  of  empire,  154-155. 

V. — Congressional  Usurpation  ....  159-193 
Decline  of  popular  branch  of  Congress  and  cotempo- 
raneous  growth  of  this  branch  in  Europe,  159-162 ; 
Government  by  committees  and  absence  of  public 
discussion  the  causes  of  decay,  162-164;  Great 
volume  of  legislation  and  the  arbitrary  methods 
of  its  passage,  164-170;  Extravagant  expendi- 
tures, 170-17 1 ;  Hasty  and  ignorant  legislation, 
171-172;  Absence  of  debate  stifles  worthy  am- 
bitions of  members  and  destroys  public  interest 
in  legislation,  172-174;  Senators  representatives 
of  property,  174-175;  The  Senate's  rapid  growth 
in  power  and  its  close  relation  to  the  President 
in  the  government  of  the  country,  176-180;  Gov- 
ernment of  Congress  undemocratic  and  a  shelter 
for  usurpation,  1 80-1 81 ;  The  Department  of  Agri- 
culture our  most  prolific  source  of  usurpation, 
182-187;  Appropriations  for  irrigation  unconsti- 
tutional, 187-188;  Detailed  acts  of  usurpation, 
188-192;  Such  usurpations  lead  to  socialism  and 
absolutism,  192-193. 

VI. — The  United  States  Supreme  Court  the  Abso- 
lute Power 197-237 

Possesses  the  most  absolute  power  ever  conferred 
upon  a  court,  197-201;  The  sources  of  its  power 
to  declare  a  national  statute  unconstitutional, 
201-205;  Before  the  Civil  War  reluctant  to  de- 
clare national  statutes  unconstitutional,  205-206; 
Our  reverence  for  courts,  207-209;  Danger  that  it 
may  increase  its  powers  by  construction,  210-2 1 2 ; 
The  Legal  Tender  cases,  212-219;  The  Income 
Tax  cases,  220-226;  The  Mankichi  case,  holding 
that  indictment  by  grand  jury  and  conviction  by 
unanimous  verdict  in  a  murder  case  were  not 
fundamental  rights,  226-232;  The  increasing  use 


xviii  CONTENTS 

CHAPTER  PAGES 

of  injunctions  in  criminal  cases,  232-234;  Tem- 
porary injunctions,  granted  by  a  single  judge, 
holding,  upon  mere  affidavits,  state  statutes 
unconstitutional,  234-237. 

VII. — Treaty  Power  and  State  Rights      .        .     241-265 

A  treaty  is  the  supreme  law  of  the  land,  binding  all 
the  states,  242;  The  facts  establishing  this  con- 
tention, 243-250;  Calhoun's  opinion,  251-252; 
The  decisions  of  the  courts  unanimously  sustain 
this  contention,  253-256;  The  authority  for  the 
state  rights  contention,  257;  Difficulty  with  Italy 
over  killing  of  her  citizens  by  mob  at  New  Orleans, 
258-260;  Political  leaders  allow  violent  treat- 
ment of  aliens  for  party  reasons,  260-261 ;  The 
California  school  statute,  262-263;  The  present 
treaty  with  Japan  has  an  express  provision 
exempting  state  laws,  263-264;  Treaty  power  was 
never  intended  as  a  means  of  acquiring  Asiatic 
territory,  264-265. 

VIII. — The  Interstate  Commerce  Clause      .       .     269-305 

President  Roosevelt's  contention  that  state  rights 
should  be  preserved  only  when  they  mean  the 
people's  rights,  269-272;  The  right  of  commercial 
intercourse  belonged  to  the  people  before  the 
Constitution,  272;  The  Constitution  is  to  be 
interpreted  by  the  facts  existing  at  its  birth,  273- 
274;  The  regulation  of  commerce  by  the  nation 
was  intended  to  prevent  obstructions  to  com- 
merce, 274-279;  The  Interstate  Commerce  Em- 
ployers' Liability  Act,  284-289;  Proposed  Inter- 
state Commerce  Child  Labor  Law,  289-291 ;  Judge 
Farrar's  plan  of  government  ownership  of  all 
interstate  railways  approved  by  the  President, 
291-294;  The  Lottery  Case,  its  important  bearing 
upon  the  police  powers  of  the  states,  294-301; 
The  blessings  of  free  trade  between  the  states, 
302;  Are   national   officials   more   efficient  than 


CONTENTS  xix 

CHAPTER  PAGES 

those  of  states?  303;  The  great  and  dangerous 
power  exercised  by  the  President  through  com- 
missions, 304-305. 

IX. — State     Centralization    through    Commissions 

AND  Courts 309-341 

The  source  of  local  self-government  and  its  value, 
309-311;  Government  by  commissions  in  Massa- 
chusetts, 31 1-3 13;  New  York,  313-316;  Con- 
necticut, 316-317;  New  Hampshire,  317-318; 
South  Carolina,  318;  Benefits  of  commissions  and 
dangers  therefrom,  318-321;  The  Pennsylvania 
"Ripper"  Bills  and  State  House  appropriations, 
321-323;  Bipartisan  commissions  and  govern- 
ment of  cities  from  state  capitals,  323-324;  Legis- 
lation by  committees,  324-325;  Overlegislation, 
sumptuary  laws,  and  special  legislation,  325-327; 
A  revolution  in  the  practice  of  appellate  courts 
as  to  setting  aside  verdicts  as  against  the  weight 
of  evidence,  327-330;  Reversals  of  judgments  for 
technical  defects,  330—331;  The  requirement  of 
unanimous  verdicts  in  jury  trials,  332;  The 
slaughter  through  negligence,  333 ;  The  Star  Cham- 
ber of  Colorado,  334-335 ;  John  Doe  warrants  and 
exercise  of  arbitrary  power  in  New  York  City, 
335-336;  Abuses  a  pretext  for  interference  by 
the  national  government,  337;  The  remedy,  338- 
339;  The  President's  paternal  interest  in  the 
Governors  of  New  York  and  Massachusetts, 
340-341. 

X. — Usurpation  in  Administrative  Law  .  .  345-374 
Nature  and  growth  of  administrative  agencies,  345- 
347;  The  Ju  Toy  Case,  347-354;  Mail  stoppage 
orders,  355-363;  Our  censors  compared  with 
those  of  Europe,  364-366;  Recent  instances  of 
usurpation  in  Administrative  Law,  366-370; 
Judge  Gaynor  on  danger  of  commissions,  370-37 1 ; 
Administrative  courts  in  Continental  Europe, 
371-373;  Whither  our  President  is  leading  us, 
373-374- 


XX  CONTENTS 

CHAPTER  PAGES 

XI. — How  TO  Restore  the  Democratic  Republic,  377-407 
The  characteristics  of  our  people  endanger  their 
liberties,  377-380;  Materialism  the  foe  of  liberty, 
380-384;  Instances  of  public  virtue  and  its 
immortality,  384-386 ;  We  must  destroy  bosses  and 
monopolies,  386-387;  The  solution  of  public 
questions  and  the  removal  of  evils  rests  directly 
upon  the  people,  387-389;  The  first  legal  change 
should  be  an  easier  method  of  amending  our 
Constitution,  389-391;  Real  party  government 
impossible  at  present,  391-392;  House  of  Repre- 
sentatives should  be  supreme  in  lawmaking, 
392-393;  The  heads  of  departments  should  be 
heard  in  Congress,  as  in  England,  393-394;  The 
flood  of  legislation  should  be  stopped,  395-396; 
The  right  kind  of  party  government  a  blessing, 
the  wrong  one  a  public  curse,  396-397;  Presi- 
dential term  should  be  lengthened  and  power  of 
independent  appointment  extended,  397-399; 
Popular  election  of  U.  S.  Senators,  399-400; 
Second  Session  of  Congress  should  not  follow  a 
Congressional  election,  400-401 ;  Tax  monopolies, 
401;  Private  bills  and  special  legislation  the 
source  of  corruption,  401-402;  Corrupt  govern- 
ments produce  dictators,  403 ;  The  Referendum, 
404-405 ;  An  indignant,  fighting  people  can  obtain 
their  rights,  407. 

Appendix 411 

Index 431 


I 

THE    BIRTH    OF   THE    CONSTITUTION 


\ 

"Though  small  in  their  mere  dimensions,  the  events  here 
summarized  were  in  a  remarkable  degree  germinal  events, 
fraught  with  more  tremendous  alternatives  of  future  welfare 
or  misery  for  mankind  than  it  is  easy  for  the  imagination  to 
grasp." 

John  Fiske. 


"The  Constitution  has  found  many  learned  and  intelligent 
commentators;  but  they  have  all  considered  its  excellence  to 
be  an  undoubted  and  universally  admitted  fact.  What  should 
have  been  only  the  result  of  their  investigation  they  made  the 
premises  of  their  arguments.  .  .  .  The  historical  fact  is  that 
it  was  'extorted  from  the  grinding  necessity  of  a  reluctant 
people.' " 

VoN    HOLST. 


"The  English  Constitution,  in  a  word,  is  framed  on  the  prin- 
ciple of  choosing  a  single  sovereign  authority,  and  making  it 
good;  the  American,  upon  the  principle  of  having  many  sover- 
eign authorities,  and  hoping  that  their  multitude  may  atone  for 
their  inferiority." 

Bagehot. 


CHAPTER    I 

THE    BIRTH    OF    THE    CONSTITUTION 

A  CONSIDERABLE  proportion  of  our  American  peo- 
ple have  ever  deprecated  any  criticism  of  the  Constitu- 
tion of  the  United  States,  Any  suggestion  that  the  con- 
stitutional adjustment  of  Congress,  the  President,  and 
the  Supreme  Court  is  defective  is  considered  unpatriotic 
and  un-American.  They  appear  to  think  that  it  is  the 
duty  of  the  true  patriot  to  ignore  imperfections  lest  they 
throw  discredit  upon  the  sacred  provisions  of  the  Con- 
stitution. No  free  government  can  exist  long  unless 
there  are  a  considerable  number  of  men  ready  for  un- 
sparing examination  and  criticism  of  its  weaknesses. 

It  is  uncommon  to  see  the  laws  and  constitution  of 
a  state  openly  disregarded.  It  is  the  silent  and  gradual 
attacks  that  the  citizen  should  watch  with  jealous  care. 
When  government  inspectors  supervised  the  elections 
for  representatives  in  Congress  in  the  reconstruction 
days,  and  counted  ballots  for  state  candidates  as  well  as 
for  members  of  Congress,  the  citizen  felt  the  indignity 
and  assailed  it  with  resentment.  When,  however,  usur- 
pations may  be  hidden  behind  a  government  so  compli- 
cated by  checks  and  balances  that  the  citizen  cannot 
perceive  them,  the  nature  of  the  government  may  en- 
tirely change  and  the  spirit  of  the  original  constitution 

3 


4  FEDERAL    USURPATION 

be  lost  before  he  awakes  to  the  danger.  Such  a  form  of 
government,  which  hides  usurpation  and  is  a  constant 
temptation  to  usurpation,  we  certainly  have. 

Prior  .to  the  formation  of  our  National  Govern- 
ment the  people  imposed  limitations  upon  the  monarch 
or  upon  some  centralized  power  of  the  government. 
Magna  Charta,  the  Petition  of  Right,  the  Bill  of  Rights, 
all  were  imposed  as  limitations  upon  the  power  of  the 
English  king.  In  all  modern  parliamentary  govern- 
ments the  power  of  the  people  in  the  representative 
body  of  the  government  is  supreme.  We  alone  have 
limited  the  power  of  our  House  of  Representatives  to 
such  an  extent  as  to  cripple  effective  action  on  their 
part.  A  bill  introduced  in  the  House  of  Representatives 
and  there  passed  must  receive  the  assent  of  the  Senate, 
a  body  elected  not  by  the  people  but  by  the  State  Leg- 
islatures, before  becoming  a  law.  If  the  Senate  does 
assent,  it  then  goes  to  the  President,  who  can  reject  the 
same  giving  his  reasons  therefor.  If  passed  a  second 
time  by  a  two-thirds  majority  of  each  House,  the 
Supreme  Court  of  the  United  States  may  still  hold  it 
unconstitutional. 

The  chief  value  of  a  constitution  in  a  democratic 
form  of  government,  such  as  we  are  supposed  to  have, 
is  to  afiford  ready  means  for  the  expression  in  laws  of 
the  will  of  the  people  through  responsive  legislative  ac- 
tion. The  best  form  of  party  government  is  found 
where  two  parties  espouse  conflicting  principles  and 
fight  out  the  question  of  their  value  in  the  open.  The 
Constitution  of  the  United  States  does  not  give  such 
free  and  effective  play  to  public  opinion  in  government. 


THE    BIRTH    OF   THE   CONSTITUTION  5 

The  checks  and  balances  which  it  has  created  make  the 
free  expression  of  the  convictions  of  the  people  by  a 
political  party  almost  impossible.  In  eleven  different 
Congresses  since  the  adoption  of  the  Constitution  both 
the  President  and  the  Senate  have  been  of  a  different 
political  faith  from  the  House  of  Representatives.  Dur- 
ing a  period  of  eighty-four  years  of  our  constitutional 
history  a  majority  in  the  House  of  Representatives  has 
not  been  supported  by  all  the  other  branches  of  the 
Government.  Between  1874  and  1896  there  were  but 
two  years,  the  Fifty-first  Congress,  during  which  the 
same  party  had  a  majority  in  all  the  branches  of  the 
Government.^ 

Clean-cut  issues  between  parties  upon  principles  of 
government  are  impossible  with  such  a  Constitution, 
whereby  the  President  and  the  Senate  may  represent 
one  party,  and  the  House  of  Representatives  another 
party,  and  where  both  parties,  hidden  behind  Congres- 
sional committees,  may  be  acting  collusively.  If  pub- 
lic opinion  upon  national  questions  is  to  be  made  effect- 
ive in  government,  the  House  of  Representatives, 
elected  directly  by  the  people,  must  eventually  become 
the  governing  power  in  this  country.  Its  decay  during 
the  last  thirty  years  is  an  omen  of  great  danger. 

We  hear  much  said  in  these  days  about  the  extension 
of  the  powers  of  the  National  Government  by  judicial 
construction,  but  no  appeal  is  made  by  the  President 
and  Mr.  Root  to  the  people  or  to  Congress  for  an 
amendment  conferring  such  extension.  And  why  not? 
Such  an  amendment  cannot  be  considered  by  the  people 
*  Smith,  The  Spirit  of  American  Government,  p.  227. 


6  FEDERAL   USURPATION 

unless  two  thirds  of  both  Houses  of  Congress  shall  deem 
it  necessary  and  shall  propose  the  amendment  to  the 
people  for  their  adoption,  or  two  thirds  of  the  several 
states  shall  call  a  convention  for  proposing  the  amend- 
ment, and  in  each  case  it  must  be  ratified  by  the  legis- 
latures of  three  fourths  of  the  several  states.  We  arc 
told  that  during  the  fifteen  years  from  1889  to  1904 
435  amendments  to  the  Constitution  were  proposed  in 
Congress,^  and  not  one  passed  both  Houses.  No  force 
less  than  the  force  of  revolution  can  be  expected  to 
move  this  cumbrous  machinery.  The  President  and  Mr. 
Root  well  know  this.  They  know  the  difficulties  of 
bringing  about  an  amendment,  and  so  we  are  told  that 
the  results  will  be  accomplished  by  the  exercise  of 
judicial  discretion  in  the  construction  of  the  Consti- 
tution. 

Such  a  constitution,  with  so  many  checks  and  bal- 
ances, with  so  many  difficulties  of  amendment,  is  a  con- 
stant temptation  to  President  and  Secretary,  to  Senate 
and  House,  to  usurp  power.  Unless  the  American 
people  awaken  to  the  danger  of  usurpation  and  make 
one  supreme  struggle  to  modify  the  conditions  on  which 
the  Constitution  may  be  amended,  we  are  in  imminent 
danger  of  an  entire  change  in  our  institutions  through 
gradual  encroachments  upon  the  power  of  the  states. 
Our  state  constitutions  are  amended  with  ease.  Many 
of  them  provide  for  constitutional  conventions  each 
twenty  years  to  consider  the  changes  which  new  condi- 
tions have  made  necessary.  But  our  National  Constitu- 
tion continued  from  early  in  the  nineteenth  century  for 
'■  Smith,  The  Spirit  of  American  Government,  p.  47,  note. 


THE    BIRTH    OF   THE    CONSTITUTION  7 

over  sixty  years  without  a  single  amendment,  and  from 
the  Reconstruction  Period  until  the  present  time  with- 
out another. 

Let  us  now  inquire  how  this  undemocratic  Consti- 
tution came  into  existence.  Who  conceived  all  these 
checks  and  balances  upon  the  representatives  of  the  peo- 
ple in  the  lower  House,  and  what  considerations  im- 
pelled the  making  of  such  a  Constitution?  That  the 
people  had  no  such  fear  of  their  representatives  is  shown 
by  the  fact  that  the  first  constitutions  of  the  thirteen 
states  in  nearly  every  case  gave  almost  unlimited  power 
to  the  popular  branch  of  the  Legislature.  In  nine 
states  the  judges  were  appointed  by  the  state  legisla- 
tures, either  with  or  without  the  consent  of  the  Council. 
The  appointing  power  of  the  governor  was  largely  re- 
stricted in  nearly  all  these  states.  In  six  of  them  this 
power  was  given  to  the  Legislature  or  to  the  Legislature 
and  Council.  The  veto  power  was  given  the  governor 
in  only  two  states,  Massachusetts  and  New  York.  The 
Assembly  in  each  state  was  hampered  but  little  by  ex- 
ecutive veto  or  by  the  courts.  Madison,  speaking  in  the 
convention  which  framed  the  Constitution,  said:  "Ex- 
perience shows  a  tendency  in  our  government  to  throw 
all  power  into  the  legislative  vortex.  The  executives 
of  the  states  are  little  more  than  ciphers ;  the  legisla- 
tures are  omnipotent." 

England  had  parliamentary  government  with  Pitt  as 
Prime  Minister  at  the  time  when  our  Constitution  was 
framed,  but  the  English  Government  of  that  time  was 
by  no  means  so  popular  in  form  as  the  governments  of 
the  thirteen  states.    The  masses  of  the  people  were  just 


8  FEDERAL   USURPATION 

as  strong  then  in  the  sincerity  of  their  belief  in  liberty 
as  we  are  to-day  in  the  cynicism  of  our  single-hearted 
faith  in  riches.  They  had  staked  everything  in  the 
world  for  the  vindication  of  the  principles  of  liberty. 
No  people  in  the  world  at  that  time  would  have  been 
so  quick  to  resent  and  so  ready  to  scrutinize  and  so 
brave  to  fight  attacks  upon  their  liberties.  They  took 
alarm  at  once  at  a  Constitution  which  they  feared  would 
imperil  those  liberties.  The  fear  of  kings  might  be  a 
reason  why  they  should  erect  barriers  against  the  en- 
croachments of  the  President,  but  why  they  should 
place  limitation  after  limitation  on  the  powers  con- 
ferred upon  the  House  of  Representatives  elected  by 
their  direct  vote  is  not  so  easily  explained.  That  ex- 
planation, however,  is  found  in  the  opinions  of  the  men 
who  drafted  the  Constitution.  They  had  great  fear  of 
popular  government,  and  their  fear  would  seem  to  have 
had  considerable  ground  at  that  time  for  its  existence. 

We  shall  not  appreciate  why  the  limitations  in  the 
Constitution  upon  popular  action  were  created  if  we  do 
not  understand  clearly  the  conditions  of  the  people  in 
the  thirteen  states  at  the  time  of  its  formation.  John 
Fiske,  in  his  book  entitled  "  The  Critical  Period  of 
American  History,"  has  described  fully  those  conditions. 
The  characteristic  feature  of  the  Constitution,  putting 
limitation  after  limitation  upon  popular  action,  was  a 
direct  result  of  the  reaction  which  came  from  popular 
tumult  and  popular  abuses  during  that  critical  period. 

During  their  seven  years'  war  the  2,500,000  people 
of  the  thirteen  states  had  placed  nearly  300,000  troops 
in  the  field,  and  had  raised  $170,000,000.     The  army. 


THj:    BIRTH    OF   THE   CONSTITUTION  9 

however,  had  dwindled  from  46,901  toward  the  middle 
of  the  war  to  13,832  in  1781,  and  the  revenue  had 
dwindled  from  $22,000,000  to  $2,000,000  annually.  But 
for  the  timely  aid  of  France  the  Revolution  could  never 
have  been  successful.  At  the  end  of  the  war  the  re- 
sources of  the  country  were  so  exhausted  that  no 
money  was  left  to  pay  the  arrears  of  the  soldiers  in  the 
field  nor  the  running  expenses  of  government. 

The  treaty  between  the  Confederation  and  England 
in  1783,  while  it  terminated  the  war,  at  the  same  time 
destroyed  the  foreign  commerce  of  the  states.  Prior 
to  the  Revolution  the  New  England  States  had  been 
largely  engaged  in  the  carrying  trade  between  the  col- 
onies and  the  West  Indies.  The  building  of  ships  and 
the  sailing  of  ships  was  the  great  industry  of  New  Eng- 
land. The  treaty  of  1783  closed  the  ports  of  every 
English  colony  to  New  England  ships.  The  English 
Navigation  Act  impaired  very  greatly  the  ability  of  the 
Southern  and  Middle  States  to  export  their  products. 
The  result  was  that  New  England  and  the  South,  with- 
out money  in  gold  and  silver,  with  only  their  conti- 
nental currency,  and  with  their  trade  destroyed,  were 
crippled  in  all  their  industries.  Suffering  intensely  from 
these  conditions,  a  large  body  of  the  people,  heavily  in- 
debted, subject  to  judgments  and  imprisonment  for 
debt,  developed  such  bitter  feelings  as  to  cause  the 
reaction  shown  by  the  framers  of  the  Constitution. 

By  the  Articles  of  Confederation  the  central  gov- 
ernment had  no  power  to  impose  taxes  upon  the  people 
of  the  several  states,  but  depended  entirely  upon  requi- 
sitions  made   upon   the   states    for  their   proportion   of 


lO  FEDERAL    USURPATION 

the  supply  necessary  to  meet  the  demands  of  govern- 
ment. New  Hampshire,  North  CaroHna,  and  New  Jer- 
sey refused  to  respond  to  these  requisitions.  New 
York,  Pennsylvania,  and  Connecticut  were  the  only 
states  which  responded  in  full.  Of  the  continental 
taxes  assessed  in  1783  only  a  fifth  part  had  been  paid 
by  the  middle  of  1785.  The  Government  had  become  so 
helpless  that  it  was  actually  forced  to  make  loans 
abroad,  not  only  to  pay  the  interest  upon  the  public 
debt,  but  to  pay  the  actual  current  expenses  of  gov- 
ernment. 

The  several  states  imposed  direct  taxes  as  they  do 
to-day,  and  also  laid  duties  upon  exports  and  imports, 
each  according  to  its  own  view  of  its  local  interests. 
Connecticut  imposed  duties  upon  goods  coming  from 
Massachusetts  and  from  New  York,  Pennsylvania  upon 
goods  coming  from  Delaware,  and  New  York  upon 
goods  coming  from  Connecticut  and  New  Jersey.  The 
State  of  New  York  raised  from  £60,000  to  i8o,ooo  by 
duties  upon  foreign  imports.  Connecticut  consumed 
probably  one  third  of  these  goods  imported,  conse- 
quently she  paid  one  third  of  this  amount  of  duties  in 
enhanced  prices  for  the  goods  which  she  purchased  from 
New  York.  Pennsylvania,  Virginia,  and  South  Caro- 
lina were  each  importing  states.  Madison  quaintly  de- 
scribes the  condition  of  the  times  as  follows :  "  Some  of 
the  states  had  no  convenient  ports  for  foreign  com- 
merce and  were  subject  to  be  taxed  by  their  neigh- 
bors through  whose  ports  their  commerce  was  carried 
on.  New  Jersey  placed  between  Philadelphia  and  New 
York  was  likened  to  a  '  cask  tapped  at  both  ends,'  and 


THE    BIRTH   OF   THE   CONSTITUTION  ii 

North  Carolina  between  Virgina  and  South  Carolina, 
to  a  '  patient  Weeding  at  both  arms.'  " 

The  states  shared  with  Congress  the  powers  of  coin- 
ing money,  of  emitting  bills,  and  of  making  promissory 
notes  legal  tender  for  debts.  This  power  left  to  the 
states  was  the  one  which  brought  untold  evil.  With 
little  or  no  gold  or  silver  in  the  country,  with  no  me- 
dium of  exchange,  bending  under  their  indebtedness, 
their  commerce  destroyed,  no  markets  for  their  prod- 
ucts, exhausted  by  the  great  burdens  of  the  Revolu- 
tionary War,  and  disappointed  because  liberty  had  not 
brought  blessings  to  them,  the  people  in  all  the  states 
but  Connecticut  and  Delaware  provided  for  the  issue  of 
paper  money. 

In  Rhode  Island  the  farmers  gave  mortgages  on 
their  land  for  the  loan  of  paper  money  issued  by  the 
State,  and  when  they  tendered  the  money  to  a  store- 
keeper in  payment  for  goods  he  refused  to  accept  it. 
Then  laws  were  passed  in  Rhode  Island  and  in  many 
other  states  requiring  creditors  to  accept  the  money  in 
payment  of  debts,  and,  in  case  of  refusal,  permitting 
debtors  to  go  before  any  magistrate  and  tender  this 
money  in  payment  of  a  debt,  whereupon  a  certificate 
was  given  by  the  magistrate  as  evidence  of  payment. 
In  North  Carolina  the  money  was  used  by  the  State  to 
purchase  tobacco,  the  State  paying  twice  the  value  of 
it  in  order  to  get  the  people  to  take  the  money.  Finally, 
South  Carolina,  Georgia,  and  Rhode  Island  were  driven 
to  pass  penal  statutes  punishing  those  who  would  not 
accept  the  money  in  full  payment.  So  little  of  currency 
was  there  in  the  country  that  the  people  reverted  to  the 


12  FEDERAL    USURPATION 

practice  of  barter,  whisky  in  North  CaroHna  and  to- 
bacco in  Virginia  doing  duty  as  money.  Some  states 
even  passed  laws  permitting  their  products  to  be  given 
in  payment  of  debts  at  a  certain  price.  The  result  was 
mobs  in  Rhode  Island  that  attemped  to  intimidate  the 
court  in  passing  upon  the  constitutionality  of  its  Legal 
Tender  Act,  and  an  insurrection  in  Massachusetts  which 
broke  up  courts  and  was  finally  put  down  by  armed 
troops. 

That  this  turbulence  and  passion  naturally  inspired 
a  very  grave  distrust  of  the  people  in  the  men  who 
framed  the  Constitution  is  well  established.  More  than 
fifty  years  after  the  formation  of  the  Constitution  the 
notes  of  Madison,  giving  the  sentiments  of  the  men  who 
drafted  the  Constitution,  were  published.  Then  for  the 
first  time  the  world  knew  what  these  men  thought  of 
the  people  and  why  they  created  so  many  limitations 
upon  the  action  of  the  House  of  Representatives.  Gov- 
ernor Randolph  of  Virginia  said  in  the  convention: 
"  In  tracing  these  evils  to  their  sources  every  man  has 
found  it  in  the  turbulence  and  follies  of  democracy." 
George  Mason  of  the  same  State  said :  "  The  injustice 
and  oppression  experienced  among  us  arises  from  de- 
mocracy." Roger  Sherman  of  Connecticut  thought 
"  that  the  people  would  never  be  sufficiently  informed 
to  vote  intelligently  on  all  candidates  that  might  be 
presented."  Elbridge  T.  Gerry  of  Massachusetts  de- 
clared that  "  the  follies  which  we  experience  flow  from 
the  excess  of  democracy."  Hamilton,  Gouverneur  Mor- 
ris, and  many  of  the  other  delegates  made  like  ex- 
pressions. 


THE   BIRTH   OF   THE   CONSTITUTION  13 

Reading  Madison's  notes  (the  only  complete  state- 
ment of  what  occurred  in  the  National  Convention), 
there  can  be  but  one  conclusion :  that  the  limitations 
upon  the  popular  branch  of  Congress  were  created  be- 
cause of  the  deep-seated  distrust  of  democratic  govern- 
ment on  the  part  of  the  men  who  frarried  the  Consti- 
tution. They  believed  that  a  popular  majority  was  a 
menace  to  liberty  and  feared  the  people,  so  they  cre- 
ated the  Constitution  with  the  idea  of  making  control 
by  the  people  ineffective.  Governor  Clinton,  before  the 
convention  in  New  York  called  for  the  purpose  of  con- 
sidering the  adoption  of  the  Constitution,  well  said :  "  I 
ever  lamented  the  feebleness  of  the  Confederation,  for 
this  reason,  among  others,  that  the  experience  of  its 
weakness  would  one  day  drive  the  people  into  an  adop- 
tion of  a  constitution  dangerous  to  our  liberties.  I 
know  the  people  are  too  apt  to  vibrate  from  one 
extreme  to  another."  ^ 

The  conditions  resulting  from  the  control  by  the 
states  of  commerce,  as  permitted  by  the  Articles  of  Con- 
federation, were  simply  intolerable.  The  National 
Assembly  in  1785  requested  the  several  states  to  allow 
the  Confederation  to  impose  duties  upon  imports  of  tea, 
coffee,  sugar,  and  other  like  articles,  to  provide  for  the 
current  expenses  of  government.  Ten  states  consented, 
but  attached  such  conditions  to  their  consent  as  made 
them  of  no  value. 

Finally,  at  a  meeting  at  Mount  Vernon,  in  1785,  of 
commissioners  from  the  States  of  Maryland  and  Virginia 
to  define  their  respective  jurisdiction,  a  suggestion  was 
•  Elliot's  Deb.,  vbl.  ii,  p.  359. 


14  FEDERAL    USURPATION 

made  that  a  general  convention  of  the  states  should  be 
held  to  provide  plans  for  the  common  control  of  all  for- 
eign and  interstate  commerce.  The  Legislature  of  Vir- 
ginia thereupon  sent  to  the  Legislatures  of  the  states  an 
invitation  to  send  representatives  to  Annapolis  in  1786 
to  devise  common  commercial  regulations  of  foreign  and 
interstate  trade.  Only  the  States  of  Virginia,  Pennsyl- 
vania, New  York,  and  Delaware  responded.  With  so 
few  states  present  the  convention  at  Annapolis  deferred 
action,  but  through  Alexander  Hamilton  drafted  a  re- 
port to  Congress.  Hamilton  prepared  this  report  with 
careful  reference  to  a  convention  of  all  the  states,  not 
to  amend  the  Articles  of  Confederation,  but  to  create 
an  entirely  new  government,  urging  Congress  to  call  a 
convention  to  devise  "  such  further  provisions  as  shall 
appear  to  them  necessary  to  render  the  Constitution  of 
the  Federal  Government  adequate  to  the  exigencies  of 
the  Union,  and  to  report  to  Congress  such  an  act  as,  when 
agreed  to  by  them  and  confirmed  by  the  Legislature  of 
every  state,  would  efifectually  provide  for  the  same." 
Congress  neglected  to  act  until  a  culmination  of  evils 
forced  them  to  issue  an  address  to  the  different  states 
asking  that  commissioners  be  sent,  and  adopting  the  lan- 
guage of  Hamilton  in  his  report  of  the  Annapolis  con- 
vention. 

In  May,  1787,  fifty-five  delegates,  representing  all  the 
states  but  Rhode  Island,  assembled  in  Philadelphia. 
Mr.  Fiske  tells  us  that  twenty-nine  of  these  delegates 
were  university  men,  graduates  of  Yale,  Harvard,  Prince- 
ton, Columbia,  William  and  Mary,  Oxford,  Glasgow,  and 
Edinburgh.     Among  the  twenty-six  who  were  not  uni- 


THE   BIRTH   OP   THE   CONSTITUTION  15 

versity  men  were  Washington  and  Franklin.  John 
Adams  and  Thomas  Jefferson  were  in  Europe.  Samuel 
Adams,  Patrick  Henry,  and  Richard  Henry  Lee  dis- 
approved of  the  convention,  and  remained  at  home. 
The  convention  selected  George  Washington  for  its 
president. 

The  first  resolution  passed  by  the  convention  is  in 
the  following  words :  "  Resolved,  That  it  is  the  opinion 
of  this  committee  that  a  national  government  should  be 
established,  consisting  of  a  supreme,  legislative,  execu- 
tive, and  judiciary."  Six  states,  Massachusetts,  Pennsyl- 
vania, Delaware,  Virginia,  North  Carolina,  and  South 
Carolina,  voted  for  this  resolution.  Connecticut  voted 
no;  New  York  was  divided.  It  often  has  been  claimed 
that  the  separation  of  these  departments  of  government 
in  our  Constitution  was  the  result  of  the  teachings  of 
Montesquieu,  who  had  published  his  "  Spirit  of  the 
Laws  "  about  thirty  years  before  the  Constitution  was 
adopted.  Montesquieu  was  a  great  admirer  of  the  Eng- 
lish Constitution,  and  attributed  its  success  to  the  fact 
that  there  was  a  division  of  the  government  into  ex- 
ecutive, legislative,  and  judicial  departments.  He  held 
this  up  to  his  readers  as  a  model  form  of  government, 
and  described  at  great  length  the  advantages  to  be  de- 
rived from  this  separation.  From  time  to  time,  later 
in  the  debates  of  the  convention,  the  writings  of  Montes- 
quieu were  referred  to,  but  no  reference  to  them  was 
made  in  connection  with  the  passage  of  this  resolution. 
Certainly  Montesquieu  was  mistaken  as  to  the  real  con- 
dition of  the  English  Government  at  the  time  when  he 
wrote.    The  men  who  framed  the  Constitution  were  prob- 


l6  FEDERAL    USURPATION 

ably  better  acquainted  with  its  actual  workings  than  was 
the  author  of  the  "  Spirit  of  the  Laws."  They  well  knew 
that  Lord  North,  as  Prime  Minister  during  the  Revo- 
lutionary War,  had  been  controlled  by  George  IIL 
They  appreciated  that  the  subservient  parliaments  of  the 
administration  of  Lord  North  represented  the  estates  and 
the  money  of  the  peers  and  the  influence  of  the  king 
rather  than  the  great  body  of  the  English  people,  and 
there  is  much  more  reason  to  believe  that  they  had  in 
mind  the  tyranny  of  George  III  in  providing  for  this 
separation  rather  than  the  teachings  of  Montesquieu. 

Two  plans  of  government  were  presented  to  the  con- 
vention, one  known  as  the  Virginia  plan  and  the  other 
as  the  New  Jersey  plan.  The  Virginia  plan  had  been 
carefully  drafted  by  James  Madison  and  given  to  Gov- 
ernor Edmund  Randolph  for  presentation  as  the  lead- 
ing representative  of  the  State  of  Virginia.  The  Vir- 
ginia plan  went  at  once  to  the  root  of  the  whole  evil  of 
the  Confederation  by  creating  a  new  government  with 
power  to  enforce  its  decrees  upon  the  people  of  the 
states.  In  the  convention  in  New  York  for  the  adoption 
of  the  Constitution,  Lansing  said :  "  I  know  not  that  his- 
tory furnishes  an  example  of  a  Federated  Republic  coerc- 
ing the  states  composing  it  by  the  mild  influence  of  laws 
operating  on  the  individuals  of  those  states."  James 
Madison  states  that  Noah  Webster,  in  the  winter  of 
1784-85,  first  proposed  "  A  new  system  of  government 
which  should  act,  not  on  the  states,  but  directly  on  in- 
dividuals, and  vest  in  Congress  full  power  to  carry  its 
laws  into  efi^ect."  ^     The  New  Jersey  plan  proposed  to 

>  Elliot's  Deb.,  vol.  v,  p.  118. 


THE    BIRTH   OF   THE   CONSTITUTION  17 

leave  the  states  instead  of  the  people  of  the  states  as 
the  basis  of  government,  thus  permitting  the  very  causes 
of  the  existing  evils  to  continue. 

The  great  contest  before  the  convention  was  over 
the  questions  of  the  control  of  commerce  and  of  the 
institution  of  slavery  in  the  Southern  States.  New 
Hampshire,  Massachusetts,  and  Rhode  Island  had  united 
in  passing  in  the  Legislatures  of  each  of  those  states  what 
were  known  as  Navigation  Acts,  providing  that  no  goods 
should  be  shipped  in  English  vessels,  with  other  provi- 
sions tending  to  destroy  English  commerce  in  our  ports. 
The  ships  of  the  New  England  States  transported  most 
of  the  exported  products  of  the  South.  So  exceedingly 
fertile  and  profitable  were  the  lands  of  South  Carolina 
that,  in  the  single  port  of  Charleston,  a  hundred  large 
ships  were  loaded  yearly  with  rice  and  indigo.  The  an- 
nual exports  of  tobacco  from  Virginia  alone  were  700,- 
000  or  800,000  pounds. 

The  imposition  of  duties  upon  foreign  commerce 
being  left  with  Congress,  the  South  feared  that  New 
England  and  the  Middle  States  would  unite  and  con- 
trol commerce  against  her  interests,  imposing  heavy 
freight  charges  upon  her  exports  and  obstructing  the 
importation  of  goods  to  her  ports  by  protective  tariffs. 
Massachusetts  was  the  only  state  in  the  nation  at  that 
time  which  did  not  own  slaves,  and  though  slaves  were 
held  in  all  the  other  Northern  States  the  system  of 
slavery  was  rapidly  dying  out  in  the  North,  The  Massa- 
chusetts delegates,  as  well  as  the  delegates  from  Vir- 
ginia, favored  limitations  upon  the  importation  of  slaves. 
The  result  was  that  a  committee  consisting  of  one  dele- 


l8  FEDERAL    USURPATION 

gate  from  each  state  was  appointed  to  adjust  the  ques- 
tions of  slavery  and  the  control  of  foreign  commerce. 
The  Southern  men  insisted  that  no  Navigation  Act  or  act 
controlling  commerce  should  be  passed  without  a  ma- 
jority vote  of  two  thirds  of  the  members  of  each  branch 
of  the  Congress.  The  Northern  men,  on  the  other  hand, 
urged  that  limitations  should  be  put  upon  the  existence 
of  slavery,  and  that  the  evil  should  be  gradvially  de- 
stroyed. The  result  was  a  compromise  permitting  the  im- 
portation of  slaves  until  the  year  1808,  and  consenting 
that  commerce  should  be  controlled  by  Congress  upon 
a  mere  majority  vote.  This  compromise  was  baleful  seed 
for  the  new  nation,  producing  two  of  the  greatest  evils 
which  this  country  has  ever  known.  We  destroyed  slavery 
by  the  sacrifice  of  the  blood  of  a  million  men  and  of 
billions  of  treasure,  but  we  continue  to  allow  Congress, 
by  a  mere  majority  vote,  to  pass  navigation  and  high 
tariff  acts  that  obstruct  commerce  for  the  profit  of  manu- 
facturing interests,  and  thus  we  prolong  an  all-pervasive 
source  of  corruption,  "  By  an  inevitable  chain  of  causes 
and  effects  Providence  punishes  national  sins  with  na- 
tional calamities." 

When  James  Wilson  and  Charles  Pinckney  suggested 
that  the  executive  power  should  be  intrusted  in  the  hands 
of  one  man,  it  is  said  that  a  profound  stillness  fell  upon 
the  convention  and  no  one  spoke  for  several  minutes, 
until  Washington  from  the  chair  asked  if  he  should  put 
the  question.  Sherman  and  other  members  of  the  con- 
vention spoke  of  the  executive  as  "  nothing  more  than 
an  institution  for  carrying  the  will  of  the  legislature  into 
effect."    After  it  had  been  determined  that  the  executive 


THE   BIRTH   OF   THE   CONSTITUTION  19 

power  should  be  intrusted  to  one  man,  the  question  of 
the  time  of  office  was  discussed  and  terms  of  one,  two, 
three,  four,  ten,  and  fifteen  years  were  suggested,  but 
Rufus  King  of  Massachusetts  remarked:  "  Better  call  it 
twenty,  it  is  the  average  reign  of  princes." 

After  four  or  five  weeks  of  constant  sittings  of  the 
convention  grave  .doubt  existed  as  to  whether  any 
agreement  could  be  reached.  Dr.  Franklin,  who  was  not 
conspicuous  for  his  religious  fervor,  seeing  the  danger 
and  lamenting  it,  arose  and  said:  "Mr.  President:  The 
progress  we  have  made  after  four  or  five  weeks'  close  at- 
tendance and  continual  reasoning  with  each  other — our 
different  sentiments  on  almost  every  question,  several  of 
the  last  producing  as  many  '  noes  '  as  *  ayes  ' — is  me- 
thinks  a  melancholy  proof  of  the  imperfection  of  the 
human  understanding — in  this  situation  of  this  Assem- 
bly groping,  as  it  were,  in  the  dark  to  find  political  truth, 
scarcely  able  to  distinguish  it  when  presented  to  us,  how 
has  it  happened,  sir,  that  we  have  not  hitherto  once 
thought  of  applying  to  the  Father  of  Lights  to  illumi- 
nate our  understandings?"  He  then  moved  that  each 
session  of  the  convention  be  opened  with  prayer.  Ham- 
ilton and  several  of  the  other  members  suggested  that 
it  was  too  late  a  day  for  this  innovation,  and  after  sev- 
eral unsuccessful  attempts  to  adjourn  the  convention 
without  acting  upon  the  proposition,  it  was  at  length 
carried.^ 

Madison's  notes  show  that  again  and  again  expres- 
sions were  made  by  members  of  the  convention  to  the 
effect  that  such  language  must  be  used  in  the  Constitu- 
•  Elliot's  Deb.,  vol.  v,  pp.  253,  254, 


20  FEDERAL    USURPATION 

tion  as  would  not  arouse  apprehension  on  the  part  of 
the  people  that  their  liberties  were  being  affected  lest 
they  reject  it.  A  single  instance  of  the  spirit  of  many 
of  the  men  of  the  convention  is  shown  by  a  letter  writ- 
ten by  Gouverneur  Morris  in  Jefferson's  administration. 
Our  country  had  just  secured  the  great  Louisiana  Terri- 
tory from  France  by  a  treaty  which  provided  that  the 
territory  should  be  divided  up  into  states  and  eventually 
made  part  of  the  Union.  While  the  right  to  acquire 
territory  by  treaty  was  conceded,  Jefferson  believed  that 
it  could  not  be  divided  into  states  and  received  into  the 
Union  without  an  amendment  to  the  Constitution,  as  his 
letters  written  at  the  time  to  Breckinridge,  Gallatin, 
Dunbar,  and  Nicholas  clearly  establish.  The  final  draft 
of  the  Constitution  was  made  by  Gouverneur  Morris, 
and  he,  more  than  any  other  member  of  the  convention, 
was  responsible  for  the  wording  of  each  section.  Article 
4,  Section  3,  provides :  "  The  Congress  shall  have  power 
to  dispose  of  and  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to 
the  United  States ;  nothing  in  this  Constitution  shall  be 
so  construed  as  to  prejudice  any  claim  of  the  United 
States  or  of  any  particular  State." 

Gouverneur  Morris,  writing  to  his  friend  Henry 
Livingston  with  reference  to  the  right  of  the  United 
States  to  purchase  this  territory  and  take  it  into  the 
Union  as  states,  said :  "  I  always  thought  that  when  we 
would  acquire  Canada  and  Louisiana  it  would  be  proper 
to  govern  them  as  provinces  and  allow  them  no  voice  in 
our  councils.  In  wording  the  third  section  of  the 
fourth  article    I    went  as   far  as   circumstances   would 


THE    BIRTH   OF   THE   CONSTITUTION  21 

permit  to  establish  the  exclusion.  Candor  obliges  me  to 
add  my  belief  that  had  it  been  more  pointedly  expressed, 
a  strong  opposition  would  have  been  made."  ^  The 
leading  men  of  thie  state  conventions  who  adopted  the 
Constitution  well  knew  that  a  democratic  republic  could 
not  govern  subject  races,  and  that  every  democ- 
racy which  had  attempted  empire  had  met  with  disaster. 
Yet  Gouverneur  Morris  intended,  according  to  his  own 
admission,  to  draft  this  section  in  such  a  way  as  not  to 
disclose  the  intent  to  hold  the  people  of  newly  acquired 
territories  as  subjects,  well  knowing  that  if  the  intent 
was  understood  the  Constitution  would  be  defeated. 

The  Constitution  was  now  sent  by  Congress  to  the 
several  states  for  their  consideration  and  adoption,  and 
with  its  submission  arose  one  of  the  most  vigorous 
struggles  upon  questions  of  political  principles  which 
our  country  has  ever  seen.  The  columns  of  newspapers 
were  filled  with  articles  by  writers,  ardent  for  its  adop- 
tion or  its  rejection,  who  concealed  their  personalities 
under  such  classic  and  sonorous  names  as  Cassius, 
Agrippa,  Cato,  Caesar,  or  Aristides.  The  struggle  was 
carried  on  most  vigorously  in  Virginia,  Massachusetts, 
and  New  York,  the  Constitution  being  passed  in  each 
state  only  after  long  discussion  and  by  very  small  ma- 
jorities. Those  engaged  in  commerce  and  residing  in 
the  cities  were  uniformly  favorable  to  the  Constitution, 
while  those  settled  in  the  remoter  parts  of  the  states  and 
engaged  in  agriculture  were  quite  as  uniformly  opposed 
to  it.  In  New  York,  Albany  and  Tryon  Counties  were 
arrayed  against  the  southern  part  of  the  State.  In  Mas- 
>  Columbia  Law  Review,  March,  1905,  p.  195. 


22  FEDERAL    USURPATION 

sachusetts,  Boston  and  the  surrounding  country  was 
opposed  by  the  central  and  western  part  of  the  State. 
The  Constitution  never  could  have  been  adopted  had  it 
not  been  for  the  desperate  conditions  of  the  different 
states  at  that  time.  In  Virginia,  Patrick  Henry,  Georgrj 
Mason,  Benjamin  Harrison  and  John  Tyler  (the  fathers 
of  the  two  future  presidents)  and  James  Monroe  each 
opposed  its  adoption. 

Article  i,  Section  i,  of  the  Constitution  ^  provides 
that  "  All  legislative  powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States  which  shall 
consist  of  the  Senate  and  House  of  Representatives." 
The  powers  referred  to  as  granted  to  Congress  are  lim- 
ited by  the  worjis  "  herein  granted"  and  they  are  found 
enumerated  in  Section  8  of  Article  i.  No  power  is  con- 
ferred upon  Congress  except  those  specified  in  the 
seventeen  subdivisions  of  that  section.  The  eighteenth 
subdivision,  providing  that  Congress  shall  have  power 
"  to  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,"  is 
the  provision  in  the  Constitution  over  which  much  of 
the  litigation  as  to  the  constitutionality  of  acts  of  Con- 
gress has  arisen.  This  may  seem  strange  to  the  reader, 
because  that  provision  is  no  more  than  would  be  implied 
from  the  granting  of  an  express  power,  since  every 
power  carries  with  it  by  implication  the  right  to 
exercise  all  necessary  and  proper  powers  for  its  execu- 
tion. These  words  would  therefore  seem  to  be  unneces- 
sary. Yet  under  this  last  clause  have  arisen  the  ques- 
tions of  the  constitutionaHty  of  the  Bank  of  the  United 
>  A  copy  of  the  Constitution  may  be  found  in  the  Appendix. 


THE    BIRTH    OF   THE   CONSTITUTION  23 

States;  of  the  Legal  Tender  Acts;  of  the  vast  works  of 
internal  improvement;  of  the  power  to  use  billions  of 
dollars  of  the  people's  money  to  foster  agriculture  and 
irrigate  arid  lands;  of  the  power  to  lay  embargoes  on 
shipping,  and  of  enacting  protective  tariffs  and  naviga- 
tion acts. 

In  Section  9  of  Article  i  are  the  provisions  prohibit- 
ing acts  on  the  part  of  Congress,  while  in  Section  10 
of  Article  i  are  gathered  the  prohibitions  upon  the 
actions  of  the  different  states.  In  this  connection  it  is 
most  important  to  observe  that  the  grants  of  power 
found  in  Section  8  of  Article  i  on  the  part  of  the  states 
to  the  National  Government  are  not  exclusive  in  their 
nature  except  in  those  cases  where  the  state  is  forbidden 
in  Section  10  from  doing  the  same  act.  Thus  the  state 
is  forbidden  from  entering  into  any  treaty,  alliance,  or 
confederation,  from  coining  money,  emitting  bills  of 
credit,  making  anything  but  gold  or  silver  coin  a  pay- 
ment of  debts,  passing  any  bill  of  attainder,  ex  post  facto 
law,  or  impairing  the  obligation  of  contracts.  Until  Con- 
gress has  exercised  these  powers  of  Section  8,  the  state 
can  continue  to  exercise  such  of  them  as  are  not  thus 
prohibited  to  the  states  and  are  not  national  in  their 
nature.^  So  for  a  hundred  years  after  the  passage  of 
the  Constitution  the  state  governments  imposed  quar- 
antine against  other  states,  and  that  power  recently  has 
been  absorbed  by  the  National  Government.    Each  state 

>  Cooley  v.  Port  Wardens,  12  How.,  310,  319;  Pound  v.  Truck, 
95  U.  S.,  459;  Cardwell  v.  Am.  River  Bridge  Co.,  113  U.  S.,  205; 
Leisy  v.  Hardin,  135  U.  S.,  100;  Louisiana  v.  Texas,  176  U.  S., 
1;  Compaignie  v.  Board  of  Health,  186  U.  S.,  399. 


24  FEDERAL   USURPATION 

may  pass  bankruptcy  laws  which  exist  until  the  National 
Government  has  provided  for  a  system  of  uniform  laws 
on  the  subject  of  bankruptcy  throughout  the  United 
States.  Each  state  may  provide  for  the  punishment  of 
counterfeiting  the  securities  and  current  coin  of  the 
United  States,  and  each  state  may  regulate  foreign  and 
interstate  commerce  upon  subjects  which  are  of  such  a 
nature  that  Congressional  legislation  is  not  necessary  to 
reach  them,  such  as  inspection  of  pilotage,  port  regula- 
tions, and  improvements  of  harbors.^  In  all  the  cases 
referred  to  above,  and  others  not  enumerated,  the  state 
has  what  is  called  "  concurrent  power  "  to  execute  pow- 
ers which  were  delegated  to  the  National  Government, 
until  Congress  has  passed  a  statute  controlling  the 
matter. 

There  is  no  such  thing  as  an  inherent  right  in  Con- 
gress to  exercise  any  power  not  specified  in  the  seven- 
teen subdivisions  of  Article  i.  Section  8.-  When  a 
power  is  implied  by  the  courts  it  must  be  implied  as 
necessary  and  proper  for  carrying  into  execution  an 
express  power  granted.  "  The  powers  affecting  the 
internal  affairs  of  the  states  not  granted  to  the  United 
States  by  the  Constitution  nor  prohibited  by  it  to  the 
states  are  reserved  to  the  states  respectively,  and  all 
powers  of  a  national  character  which  are  not  delegated 
to  the  National  Government  by  the  Constitution  are  re- 
served to  the  people  of  the  United  States."  ^      So  all 

»  Bowman  v.  Chicago  Ry.  Co.,  125  U.  S.,  215,  507;  Cooley's 
Constitutional  Lim.,  pp.  215,  723. 

2  Kansas  v.  Colorado,  206  U.  S.,  89. 
s  Kansas  v.  Colorado,  206  U.  S.,  90. 


THE   BIRTH   OF   THE   CONSTITUTION  25 

powers  not  affecting  the  internal  affairs  of  the  states, 
and  at  the  same  time  being  national  in  their  nature, 
but  not  delegated  by  the  people  to  the  National  Gov- 
ernment, are  reserved  to  the  people  of  the  United 
States  and  they,  if  they  desire,  can  confer  them,  by 
an  amendment  to  the  Constitution,  upon  the  United 
States.^ 

Turning  now  to  the  executive  power  in  Article  2, 
Section  i,  and  to  the  judicial  power.  Article  3,  Section  i, 
we  find  that  neither  executive  power  nor  judicial  power 
are  limited  to  powers  "  herein  granted."  Section  i  of 
Article  2  provides  that  "  The  executive  power  shall  be 
vested  in  a  President  of  the  United  States  of  America." 
Section  i  of  Article  3  provides  that  "  The  judicial  power 
of  the  United  States  shall  be  vested  in  one  Supreme 
Court."  So  that  notwithstanding  each  of  these  general 
grants  of  power  are  followed  by  an  enumeration  of 
special  powers  granted,  the  general  grant  of  power  we 
are  told  to  our  surprise  by  the  United  States  Supreme 
Court  is  not  limited  by  the  enumeration.^ 

The  first  eight  amendments  to  the  Constitution 
enumerate  popular  rights,  the  origin  of  which  can  be 
traced  to  some  event  or  series  of  events  in  English  his- 
tory where  the  right  was  won  as  the  result  of  years  of 
struggle.  The  Constitution  of  the  United  States  creates 
none  of  these  rights.  Every  one  of  these  enumerated 
safeguards  exist  under  the  common  law  or  in  the  Consti- 
tution of  each  state,  and  the  only  result  of  their  incor- 
poration   by    amendment    in    the    Constitution    of    the 

'  Kansas  v.  Colorado,  206  U.  S.,  90. 
2  Kansas  v.  Colorado,  206  U.  S.,  82. 


26  FEDERAL    USURPATION 

United  States  is  as  a  restraint  upon  the  action  of  the 
United  States  Government.^ 

Next  it  is  important  to  observe  that  the  ninth  and 
tenth  amendments  to  the  Constitution  preserve  to  the 
states  all  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  states,  and 
that  the  enumeration  of  certain  rights  delegated  to  the 
National  Government  shall  not  be  construed  to  deny  or 
disparage  others  retained  by  the  people.  These  amend- 
ments, say  the  United  States  Supreme  Court  in  a  re- 
cent case,  were  "  adopted  with  prescience  "  under  "  fear 
that  the  National  Government  might,  under  the  pres- 
sure of  a  supposed  general  welfare,  attempt  to  exercise 
powers  which  had  not  been  granted."  -  This  august 
court  long  ago  declared  "  that  the  maintenance  of  the 
state  governments  are  as  much  within  the  design  and 
care  of  the  Constitution  as  the  preservation  of  the 
Union  and  the  maintenance  of  the  National  Govern- 
ment. The  Constitution,  in  all  its  provisions,  looks  to 
an  indestructible  Union  composed  of  indestructible 
states."  * 

The  thirteenth  amendment,  besides  abolishing  for- 
ever slavery  and  involuntary  servitude,  gives  power  to 
Congress  to  protect  all  persons  within  the  jurisdiction 
of  the  United  States  from  being  in  any  way  subjected 
to  such  slavery  or  involuntary  servitude,  except  as  pun- 
ishment for  crime. 

'  Presser  v.  Illinois,  1 16  U.  S.,  252 ;  Maxwell  v.  Dow,  176  U.  S., 
581;  Barrington  v.  Missouri,  205  U.  S.,  483. 

2  Kansas  v.  Colorado,  206  U.  S.,  90. 

'Texas  v.  White,  7  Wallace,  725;  South  Carolina  v.  United 
States,  199  U.  S.,  453. 


THE    BIRTH    OF  THE   CONSTITUTION  27 

The  object  of  the  fourteenth  amendment  to  the  Con- 
stitution was  to  secure  the  negroes  from  discrimination 
on  the  part  of  the  state  governments.  Before  its  adop- 
tion a  Civil  Rights  Act  had  been  passed  seeking  to 
secure  that  end,  but  had  been  declared  unconstitutional. 
The  fourteenth  amendment  was  then  framed,  passed  by 
a  two-thirds  majority  through  both  Houses  of  Congress, 
and  approved  by  three  fourths  of  the  States.  It  recog- 
nized, if  it  did  not  create,  a  national  citizenship  as 
contra-distinguished  from  that  of  the  States.  It  pro- 
vided that  no  state  should  make  or  enforce  any  law 
which  should  abridge  the  privileges  and  immunities  of 
citizens  of  the  United  States ;  and  it  was  contended  later 
with  great  vigor  that  these  words  referred  to  the  first 
eight  amendments  of  the  Constitution,  and  thus  secured 
to  the  citizens  of  every  state  in  the  Union  all  of  the 
privileges  and  immunities  set  forth  in  detail  in  those 
amendments. 

If  this  claim  had  been  sustained  it  would  have  made 
the  United  States  Supreme  Court  a  guardian  of  the  per- 
sonal rights  of  the  citizen  of  every  state.  The  citizen's 
rights  would  have  been  measured,  not  by  the  guarantees 
of  personal  liberty  assured  by  his  own  state  constitu- 
tion, but  by  the  National  Government's  standard  as  set 
forth  in  the  first  eight  amendments;  and  the  United 
States  Supreme  Court  would  have  been  called  upon  in 
thousands  of  cases  to  enforce  upon  the  states  the  ob- 
servance of  these  amendments.  This  contention,  how- 
ever, was  not  sustained.^    The  construction  put  by  the 

'  The  Slaughter  House  Cases,  16  Wallace,  36;  Minor  v.  Hap- 
persett,    21    Wallace,    162;   Maxwell  v.   Dow,    176   U.    S.,    594; 


28  FEDERAL    USURPATION 

United  States  Supreme  Court  upon  the  words,  "  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law,"  in  the  fourteenth 
amendment,  is  a  narrow  one,  securing  to  the  citizen  of 
the  state  few  rights.  This  provision  has  been  construed 
to  mean  simply  that  liberty  and  property  has  not  been 
taken  without  due  process  of  law  when  it  is  taken  in 
the  course  of  the  regular  administration  of  the  law  in 
established  state  tribunals.  If  the  regular  administra- 
tion of  the  law  in  the  established  tribunals  of  the  states 
authorize  a  particular  act,  the  United  States  Court  will 
not  interfere.^ 

The  fifteenth  amendment  relates  to  the  right  of  a  citi- 
zen to  vote.  It  does  not  confer  the  right  of  suffrage  on 
anyone.  It  merely  invests  the  authorities  of  the  United 
States  with  the  constitutional  power  of  protecting  citi- 
zens in  their  enjoyment  of  the  elective  franchise  from 
discrimination  on  account  of  race,  color,  or  previous 
condition  of  servitude.'' 

So  the  reader  will  see  that  although  the  United 
States  Government,  within  the  last  four  or  five  years, 
has  held  the  attention  of  the  citizen  because  it  prom- 
ises to  rectify  great  abuses,  still  his  State  Government 
controls  him  exclusively  as  to  taxes,  schools,  trades,  in- 
heritance, marriage,  divorce,  courts,  police,  local  boards, 
and  in  a  hundred  other  diflferent  ways,  and  that  the 
proper   place   to    rectify    evils    is    at    home,    where    he 

Bounce   v.    Bidwell,    182    U.    S.,    244;    Cooley,    Constitutional 
Lim.,  4th  ed.,  p.  497,  marg.,  p.  387. 

•  Ballard  v.  Hunter,  204  U.  S.,  242. 

*  United  States  v.  Reese,  92  U.  S.,  214;  United  States  v.  Cruik- 
shank,  92  U.  S.,  542. 


THE    BIRTH   OF   THE   CONSTITUTION  29 

sees  and  appreciates  them  and  can  apply  a  direct 
remedy. 

The  sources  from  which  the  men  who  framed  the 
Constitution  drew^  their  plan  and  material  has  ever  been 
a  subject  of  interest.  Mr.  Gladstone  spoke  of  the  Con- 
stitution as  "  the  most  wonderful  work  ever  struck  off 
at  a  given  time  by  the  brain  and  purpose  of  man."  The 
trouble  with  this  statement  is  that  the  Constitution  was 
not  struck  ofif  at  a  given  time  by  the  brain  and  purpose 
of  man,  but  was  the  result  of  a  progressive  growth 
reaching  back  to  the  time  of  the  Anglo-Saxon  invasion 
of  England.  The  Anglo-Saxons  had  developed  in  Ger- 
many the  mark  and  the  hundred  and  the  tribe  which 
present  in  detail  the  gradations  of  local  inc!ependence 
and  central  authority.  In  England  the  mark  became 
the  town.  The  federation  of  Anglo-Saxon  townships 
constituted  the  Anglo-Saxon  kingdom  or  what  later 
became  the  shire.  The  shire  possessed  a  general  as- 
sembly made  up  of  all  the  freeholders  together  with  the 
representative  element  comprising,  like  the  hundred 
court,  the  head  men  and  four  chosen  men  from  each 
town  of  the  shire.  The  shire  assembly  elected  its  own 
chief  magistrate,  the  earldorman,  and  its  sheriff.  The 
judicial  executive  exercised  an  authority  over  the  gen- 
eral affairs  of  the  whole  shire  quite  similar  to  that  ex- 
ercised by  our  National  Government  over  the  several 
states.  The  Norman  Conquest  impaired  these  institu- 
tions, but  their  remembrance,  and  to  some  extent  their 
existence,  continued,  and  the  Pilgrims  brought  them  to 
this  country. 

The  central  government  of  each  of  the  New  Eng- 


30 


FEDERAL   USURPATION 


land  colonies  was  based  partly  upon  the  people  and 
partly  upon  the  towns  as  integral  elements  of  the  col- 
ony. The  governor,  deputy  governor,  and  assistants, 
who  constituted  the  upper  House  in  the  Colonial  As- 
sembly, were  chosen  in  a  general  election  by  the  whole 
body  of  freemen  when  not  appointed  by  the  Crown, 
while  the  deputies,  who  constituted  the  lower  House, 
were  chosen  by  an  equal  representation  from  the  sev- 
eral towns.  Each  citizen  was  responsible  to  the  central 
government  of  the  colony  and  to  the  government  of  his 
own  town.  This  form  of  government  was  taken  into 
Connecticut  by  the  emigrants  from  the  Massachusetts 
Bay  Colony,  and  in  Connecticut  we  find  the  same  dis- 
position of  general  and  special  powers  between  the  cen- 
tral government  of  the  colonies  and  the  governments 
of  the  constituent  communities.  This  relationship  was 
most  instrumental  in  bringing  about  the  peculiar  form 
of  our  National  Government,  with  its  representation  by 
states  in  the  United  States  Senate  and  its  representa- 
tion of  the  people  in  the  House  of  Representatives. 
The  government  of  Rhode  Island  was  the  same  as  in 
Connecticut;  and  when  each  of  these  charter  colonies 
at  the  time  of  the  Revolution  desired  to  change  their 
form  of  government  they  did  it  by  simply  declaring  that 
the  people  had  ascended  the  throne  of  the  deposed 
king,  and  this  was  all  that  was  deemed  necessary  to 
change  the  charter  of  each  into  a  constitution.  Con- 
necticut continued  under  her  old  charter  as  a  constitu- 
tion until  1818,  and  Rhode  Island  until  1842. 

Our  ancestors  sought  a  new  country,  and  they  found 
not  only  a  new  country  but  a  new  condition  of  mind. 


THE    BIRTH    OF   THE   CONSTITUTION  31 

Here,  face  to  face  with  Nature,  they  were  taught  to 
rely  mainly  on  themselves,  and  manhood  became  a  fact 
of  prime  importance.  The  neglect  of  England  became 
their  opportunity.  Nowhere  had  local  self-government 
reached  so  high  a  degree  of  efficiency  as  in  New  Eng- 
land. They  believed  it  to  be  all  important  that  people 
should  manage  their  own  affairs  instead  of  having  them 
managed  by  a  strong  central  government.  How  dif- 
ferent their  attitude  toward  government  than  was  that 
of  their  Canadian  neighbors.  The  more  the  citizen 
obeys  the  inclination  to  rely  on  help  from  others,  the 
community  or  the  state,  the  less  is  his  force  of  initi- 
ative developed,  the  less  is  he  inclined  to  exert  himself, 
not  alone  with  the  idea  of  making  a  living  but  of  attain- 
ing the  highest  development.  Never  was  there  a  more 
striking  contrast  than  between  the  government  of  the 
people  of  New  England  and  the  French  Canadians  of 
Quebec. 

Twelve  years  before  the  Pilgrims  landed  at  Ply- 
mouth Quebec  was  founded,  and  this  was  only  one  year 
after  the  first  permanent  settlement  in  America  at 
Jamestown  in  Virginia.  The  colony  grew  and  devel- 
oped under  the  benevolent  government  of  Louis  XIV. 
The  omnipresent,  inquisitorial  nose  of  the  French 
Intendant  followed  the  peasant  into  every  detail  of 
his  life.  The  price  of  wheat  and  the  price  of  about 
every  necessary  of  life  were  regulated  by  imperial  edicts. 
The  question  of  race  suicide  was  ever  one  of  great  im- 
portance. Girls  for  the  colonies  were  taken  from  the 
houses  of  refuge  in  Paris  and  Lyons  and  sent  by  ship- 
loads to  Quebec.     There  they  were  provided  husbands 


32  FEDERAL    USURPATION 

with  little  delay.  All  single  men  arriving  in  the  country 
were  obliged  to  marry  within  a  fortnight  after  the  land- 
ing of  the  prospective  brides,  and  the  Intendant  Talon 
forbade  them  while  unmarried  to  fish,  hunt,  or  go  into 
the  woods  with  the  Indians  under  any  pretense  what- 
ever. Upon  their  marriage  the  governor  general  gave 
the  newly  married  couple  an  ox,  or  a  cow,  or  a  pair  of 
swine,  or  a  pair  of  fowls,  or  a  few  crowns  of  money.^ 

Large  families  were  greatly  encouraged  by  the  Gov- 
ernment. The  king,  in  council,  passed  a  decree  that  all 
the  heads  of  families  who  should  have  living  children 
to  the  number  of  ten  born  in  lawful  wedlock  should  be 
paid  a  pension  of  300  livres,  and  those  who  should  have 
twelve  children  a  pension  of  400  livres.^  The  king  de- 
voted 40,000  livres  for  the  purpose  of  encouraging  the 
art  of  shipbuilding,  and  the  Intendant  Talon  built  a  ship 
to  show  the  people  how  they  were  built,  and  to  lead  them 
to  imitation.  Louis  XIV  trusted  the  intendant  to  issue  an 
ordinance  having  the  force  of  a  law  whenever  he  thought 
necessary  and,  in  the  words  of  his  commission,  "  to  order 
everything  as  he  shall  see  just  and  proper."  ^  The  in- 
tendants,  under  such  directions,  controlled  public  meet- 
ings, restrained  the  people  from  speaking  their  minds, 
regulated  them  in  all  the  details  of  their  life,  destroyed 
individual  initiative,  and  stunted  and  exhausted  the  en- 
ergy of  the  people.  The  New  Englander  learned  how 
to  govern  himself  because  he  lived  in  a  society  in  which 
each  man  worked  as  his  own  master,  where  he  depended 

>  The  Old  Regime,  Parkman,  221,  226. 
*  The  Old  Regime,  Parkman,  227. 
>The  Old  Regime,  Parkman,  275. 


THE    BIRTH    OF   THE   CONSTITUTION  33 

on  his  individual  action  for  promotion,  and  where  he 
controlled  the  government  in  which  he  lived.  These 
little  democracies  of  New  England  prided  themselves 
in  being  sufficient  unto  themselves,  and  out  of  them  came 
the  liberties  of  the  states  and  the  greatness  of  our 
country. 

Most  of  the  provisions  of  the  Constitution  can  be 
found  in  the  first  constitutions  of  the  states.^  The  pro- 
vision for  vesting  the  legislative  power  in  two  chambers 
finds  its  counterpart  in  the  constitution  of  six  different 
states.  The  term  of  service  of  the  members  of  the 
Maryland  Senate  suggested  the  six  years'  term  in  the 
United  States  Senate;  and  the  election  of  the  Maryland 
senators  was  the  model  of  the  provision  for  electing  the 
President  through  electors  named  by  the  legislatures  of 
the  different  states.  The  provision  for  the  impeachment 
of  the  President  of  the  United  States  or  of  any  official  is 
almost  identically  the  same  as  that  existing  in  the  Consti- 
tution of  1777  of  the  State  of  New  York.  The  pro- 
vision associating  the  Senate  with  the  President  in  the 
exercise  of  the  appointing  power  is  very  similar  to  a 
system  pursued  under  the  New  York  Constitution,  which 
provided  that  the  governor  should  make  his  appoint- 
ments "  by  and  with  the  consent  of  a  select  committee 
of  the  Senate."  The  provision  requiring  the  consent  of 
the  President  before  an  act  of  Congress  could  become  a 
law  and  permitting  him  to  veto  the  same  is  copied  al- 
most word  for  word  from  the  Constitution  of  Massa- 
chusetts. 

>  Am.   Academy  of  Political  and  Social  Science,  pamphlet 
No.  9. 

4 


34  FEDERAL    USURPATION 

In  every  one  of  the  states,  with  the  exception  of 
New  York  and  North  Carolina,  the  upper  House  was 
denied  the  right  of  originating  money  bills,  and  in  Mary- 
land, Virginia,  South  Carolina,  and  New  Jersey  the 
Senate  was  denied  the  right  of  even  amending  such  bills. 
The  qualification  for  senators  in  ten  states  which  had 
bicameral  legislatures  was  on  a  distinct  basis  of  taxable 
property,  and  a  higher  qualification  was  required  for 
electors  and  members  of  the  Senate  in  several  of  the 
states.  Gouverneur  Morris  and  other  members  of  the 
Constitutional  Convention  contended  that  the  United 
States  Senate  should  be  regarded  as  representative  of 
property ;  while  the  House  of  Representatives,  immediate- 
ly elected  by  the  people,  should  be  regarded  as  represen- 
tative of  the  people.  From  one  third  to  one  half  of  the 
members  of  the  Federal  Convention  had  been  members 
of  the  conventions  which  had  framed  the  several  state 
constitutions.  It  certainly  is  not  a  violent  presumption 
when  we  find  provisions  in  the  state  constitutions  simi- 
lar to  those  in  the  National  Constitution,  to  assume  that 
the  model  was  found  in  the  state  provision. 

George  Mason,  in  the  Virginia  Convention,  in  dis- 
cussing the  proposed  Constitution,  said :  "  Now  suppose 
oppression  should  arise  under  this  government,  and  any 
writer  should  dare  to  stand  forth  and  expose  to  the  com- 
munity at  large  the  abuses  of  those  powers,  could  not 
Congress,  under  the  idea  of  providing  for  the  general 
welfare  and  under  their  own  construction,  say  that  this 
was  destroying  the  general  peace,  encouraging  sedition, 
and  poisoning  the  minds  of  the  people?  And  could 
they  not,  in  order  to  provide  against  this,  lay  a  dangerous 


THE    BIRTH   OF   THE   CONSTITUTION  35 

restriction  on  the  press?  Might  they  not  thus  destroy 
the  trial  by  jury?"  Just  what  Mr.  Mason  apprehended 
actually  occurred.  Hardly  had  Washington  left  the 
Presidency  when,  in  July,  1798,  a  statute  was  passed  by 
Congress  making  it  a  crime  to  write,  print,  utter,  or  pub- 
lish or  cause  to  be  written,  printed,  uttered,  or  published, 
or  to  knowingly  assist  in  publishing  any  false,  scandalous, 
and  malicious  writing  against  the  Government  of  the 
United  States  with  intent  to  defame  the  said  Government, 
or  either  House  of  the  said  Congress,  or  the  President, 
or  to  bring  them  into  contempt.^  The  statute  made  this 
an  oflFense,  subject  to  prosecution  in  the  national  courts, 
which,  under  the  reserved  powers  of  the  states,  could  be 
cognizable  only  in  the  state  courts.  Matthew  Lyon,  of 
Vermont,  was  convicted  under  this  statute  and  sentenced 
to  four  months'  imprisonment  in  jail,  and  a  fine  of 
$1,000,  because  he  declared  that  the   President's   Mes- 

•  It  is  interesting  to  observe  that  a  statute  almost  identical 
with  the  sedition  law  was  passed  a  few  years  ago  in  the  Philip- 
pines.    The  statute  reads: 

"Every  person  who  shall  utter  seditious  words  or  speeches, 
write,  publish,  or  circulate  scurrilous  libels  against  the  Govern- 
ment of  the  United  States  or  the  insular  government  of  the 
Philippine  Islands,  or  who  shall  print,  write,  publish,  utter,  or 
make  any  statement  or  speech  or  do  any  act  which  may  tend 
to  disturb  or  obstruct  any  lawful  oflficer  in  executing  his  office, 
or  which  may  tend  to  instigate  others  to  cabal  or  meet  together 
for  unlawful  purposes,  or  which  suggest  or  incite  rebellious  con- 
spiracies or  riots,  or  which  tend  to  stir  up  the  people  against  the 
lawful  authorities  or  to  disturb  the  peace  of  the  community,  the 
safety  and  order  of  the  government,  or  who  shall  knowingly 
conceal  such  evil  practices,  shall  be  punished  by  a  fine  not  ex- 
ceeding $2,000  or  by  imprisonment  not  exceeding  two  years, 
or  both,  at  the  discretion  of  the  courts." 


36  FEDERAL    USURPATION 

sage  to  Congress  "  was  a  bullying  speech  which  the  Sen- 
ate in  a  stupid  answer  had  echoed  with  more  servility 
than  ever  George  III  experienced  from  either  House  of 
Parliament." 

At  the  same  time  a  statute  was  passed,  called  the 
Alien  Law,  which  declared  "  that  it  shall  be  lawful  for 
the  President  to  order  all  such  aliens  as  he  shall  judge 
dangerous  to  the  peace  and  safety  of  the  United  States, 
or  shall  have  reasonable  ground  to  suspect  are  concerned 
in  any  treasonable  or  secret  machinations  against  the 
government,  to  depart,"  etc.  The  President,  by  this 
statute,  was  made  judge  of  what  was  dangerous  to  the 
peace  and  safety  of  the  United  States.  He  was  permitted 
to  determine  what  was  a  reasonable  ground  to  suspect 
a  man  of  secret  machinations  and,  having  determined 
as  judge  this  judicial  question,  he  was  permitted  to  send 
the  man  out  of  the  country.  Thomas  Jefferson,  writing 
to  Abigail  Adams,  wife  of  John  Adams,  years  after  these 
acts  were  passed,  said  of  these  alien  and  sedition  laws 
that  he  considered  them  "  unconstitutional,  and  a  nullity 
as  absolute  and  palpable  as  if  Congress  had  ordered  us 
to  fall  down  and  worship  a  graven  image."  The  result 
of  these  acts  was  that  the  old  Federal  Party  was  swept 
out  of  power,  and  for  forty  years  Jefferson  and  his  suc- 
cessors in  the  Presidency  carried  on  the  government. 

The  generation  that  framed  the  Constitution  looked 
upon  the  document  as  most  imperfect,  but  they  adopted 
it  after  a  most  bitter  experience  under  the  Confederation. 
Having  adopted  it,  like  good  Americans,  they  set  out 
to  make  the  Constitution  popular,  and  they  praised  it  far 
beyond  its  merits.     The  result  was  so  complete  a  can- 


THE    BIRTH    OF   THE   CONSTITUTION  37 

onization  of  our  Constitution  as  to  form  an  obstacle  to 
its  amendment.  The  men  who  framed  it  were  men  of 
the  greatest  constructive  statesmanship  which  our  coun- 
try has  ever  produced,  and  the  Constitution  which  they 
prepared  was  indeed  a  blessing  to  the  people  during  the 
eighteenth  century,  perhaps  well  along  into  the  nine- 
teenth century. 

In  those  days  the  people  were  much  more  jealous  of 
power  than  now,  and  more  vigilant  in  examining  the 
actions  of  their  public  servants.  George  Mason,  in  giv- 
ing his  reasons  for  not  signing  the  Constitution,  said: 
"  This  government  will  commence  in  a  moderate  aris- 
tocracy. It  is  at  present  impossible  to  see  whether  it 
will,  in  its  operation,  produce  a  monarchy  or  a  corrupt, 
oppressive  aristocracy.  It  will  probably  vibrate  some  years 
between  the  two  and  then  terminate  in  the  one  or  the 
other."  It  will  never  terminate  in  a  monarchy  in  name. 
The  forms  of  a  democratic  government  charm  the  people 
long  after  the  spirit  of  democracy  has  fled.  Politicians 
are  wise  enough  to  appreciate  this  fact,  and  to  continue 
with  scrupulous  care  the  form  of  a  democracy.  If  the 
people  can  be  aroused  to  change  the  conditions  of  amend- 
ment so  that  the  change  in  our  civil  life  will  be  accom- 
panied by  changes  in  our  fundamental  law,  the  republic 
will  live  on  in  fact  as  well  as  in  form  for  a  long  period 
of  time.  But  if  our  original  Constitution  is  left  un- 
amended, if  the  limitations  which  it  imposes  upon  popu- 
lar government  are  continued  to  hide  the  corruption 
which  exists,  and  the  party  in  power  continues  irrespon- 
sible to  the  popular  will,  the  days  of  real  liberty  to  the 
people  are  numbered.      If  consolidation,   centralization. 


38  FEDERAL    USURPATION 

and  usurpation  in  the  National  Government  continue, 
long  before  we  reach  the  point  where  Washington  rules 
the  United  States,  as  Paris  rules  France,  the  spirit  of  lib- 
erty will  have  ceased. 

We  will  now  see  to  what  extent  the  Constitution  has 
changed  with  time,  to  what  extent  it  has  bent  to  the 
force  of  circumstances,  to  what  extent  the  Executive  and 
Congress  and  the  courts  have  set  it  aside  to  meet  the 
supposed  necessities  of  great  crises. 


II 


USURPATION    IN    THE    CIVIL   WAR    AND 
RECONSTRUCTION    PERIOD 


"When  dangers  thicken,  the  only  device  may  be  the  Roman 
one  of  a  temporary  dictatorship.  Something  Hke  this  hap- 
pened in  the  War  of  Secession,  for  the  powers  then  conferred 
upon  President  Lincoln,  or  exercised  without  Congressional 
censure  by  him,  were  almost  as  much  in  excess  of  those  enjoyed 
under  the  ordinary  law  as  the  authority  of  a  Roman  dictator 
exceeded  that  of  a  Roman  consul." 

James  Bryce. 


"In  the  plenitude  of  their  powers  as  absolute  rulers  the  gen- 
erals" (of  the  reconstruction  period)  "were  above  the  constit- 
uent assemblies  of  the  inchoate  new  states  as  distinctly  as  they 
were  above  the  governmental  organs  of  the  expiring  old  states." 

Professor  Dunning. 


"Those  pitiless  years  of  reconstruction!  worse  than  the  calam- 
ities of  war  were  the  'desolating  furies  of  peace.'" 

Bishop  Galloway. 


CHAPTER   II 

USURPATION    IN    THE   CIVIL   WAR   AND   RECONSTRUCTION 
PERIOD 

There  is,  in  the  mind  of  the  younger  generation 
which  has  come  up  since  the  war,  a  tradition  of  an  attack 
on  the  Union  by  men  who  beheved  in  state  rights.  By 
reason  thereof  state  rights,  in  their  mind,  has  a  bad 
name.  The  usurpation  of  power  by  the  Government  in 
our  day  is  occurring  in  times  of  peace  and  so  secretly 
and  so  ail-pervasively  that  men  have  become  accus- 
tomed to  it,  and  are  not  moved  as  they  were  by  such 
violent  wrestings  of  liberty  from  large  bodies  of  people 
as  occurred  in  many  states  during  Reconstruction  days. 
The  period  of  the  Civil  War  and  Reconstruction,  better 
than  any  other  in  our  history,  shows  these  violent  usur- 
pations of  power.  During  the  war,  necessity  took  the 
place  of  the  Constitution,  and  we  see  the  written  guar- 
antees of  liberty  grow  dim  in  the  smoke  of  battle.  Dur- 
ing the  Reconstruction  period,  however,  with  no  neces- 
sity to  justify  their  action.  Congress  established  a 
despotism  in  nearly  every  one  of  the  Southern  States, 
which,  when  well  known  and  fully  understood  by  the 
younger  generation  of  to-day,  will  be  condemned  by 
them  for  its  cruel  injustice. 

There  is  no  statute  of  limitations  in  the  law  of  cause 
and  effect,  and  the  usurpations  of  the  war  and  Recon- 

41 


42  FEDERAL    USURPATION 

struction  days  are  the  fundamental  causes  of  the  existing 
conditions  to-day.  Not  only  the  clear,  unquestioned 
acts  of  usurpation  of  that  period  deserve  examination, 
but  the  origin  of  the  great  centralizing  forces  coming  out 
of  protective  tariffs  and  national  banks  and  a  paper  cur- 
rency and  other  legacies  of  like  kind  from  the  Civil 
War  are  worthy  of  the  reader's  attention.  It  is  not  a 
pleasant  duty  to  recite  the  acts  that  make  the  darkest 
picture  in  all  American  history,  and  nothing  short  of 
averting  usurpation  on  the  part  of  our  National  Govern- 
ment to-day  can  justify  such  a  recital. 

Early  in  the  Civil  War  President  Lincoln  by  procla- 
mation authorized  General  Scott  to  suspend  the  writ  of 
habeas  corpus  at  any  point  on  the  military  line  between 
Philadelphia  and  Washington.  The  portion  of  the  coun- 
try covered  by  the  proclamation  was  not  in  insurrec- 
tion, and  the  publishing  of  the  proclamation  left  hun- 
dreds of  thousands  of  people  in  a  region  where  there 
was  no  war  without  any  protection  from  this  writ. 
There  was  much  doubt  as  to  whether  the  President, 
under  the  circumstances,  had  a  right  to  suspend  its 
operation.  Story  and  other  writers  upon  the  Constitu- 
tion had  maintained  that  Congress  alone  had  the  right 
to  suspend  the  writ  and  the  United  States  Supreme 
Court  had  indicated  its  opinion  to  that  eflfect.^  In  1807, 
when  an  act  was  proposed  suspending  the  writ  in  con- 
nection with  the  Burr  conspiracy,  there  was  no  intima- 
tion in  Congress  or  the  country  that  the  power  was  in 
the  President.^ 

»  BoUman  v.  Swartout,  4  Cranch,  75. 

^  Dvtnning,  Essays  on  the  Civil  War  and  Reconstruction,  p.  41. 


CIVIL    WAR   AND   RECONSTRUCTION    PERIOD      43 

Without  warrant  and  without  any  sworn  statement, 
but  merely  upon  an  order  of  the  Secretary  of  State  or  the 
Secretary  of  War,  hundreds  of  men  were  arrested  for  the 
expression  of  words  construed  as  tending-  to  inflame 
party  spirit  or  as  sympathetic  with  the  Southern  cause, 
and  hurried  away  to  Forts  Lafayette,  Warren,  McHenry, 
Delaware,  Mififlin,  Old  Capitol  Prison,  penitentiaries  and 
military  camps  in  the  different  parts  of  the  country.  So 
many  arrests  were  being  made  that  an  attempt  was 
made  to  test  the  validity  of  the  President's  action.  In 
1861  one  John  Merryman  was  held  in  detention  at  Fort 
McHenry  by  General  George  Cadwalader,  under  one  of 
these  orders  of  Secretary  Seward,  on  a  charge  of  trea- 
son. An  application  was  made  to  Judge  Taney,  Chief 
Justice  of  the  United  States  Supreme  Court,  for  a  writ 
of  habeas  corpus  requiring  the  production  of  the  prisoner 
before  the  judge  on  the  ground  that  he  was  wrongfully 
detained.  Chief  Justice  Taney  signed  the  writ  com- 
manding General  Cadwalader  to  produce  Merryman 
before  him  and  show  cause  for  his  detention.  When  the 
marshal  of  the  United  States  Court  presented  the  writ 
to  General  Cadwalader  at  the  fort,  Cadwalader  refused  to 
obey  it,  and  when  Taney  issued  a  body  attachment  against 
him  the  general  shut  the  marshal  out  of  the  fort.  There- 
upon the  chief  justice  wrote  an  opinion  as  to  the  law, 
which  was  sent  to  the  President,  holding  that  the  prisoner 
was  entitled  to  his  liberty  and  should  be  discharged  and 
that  Congress  alone  had  the  right  to  suspend  the  writ  of 
habeas  corpus.  Lincoln  ignored  this,  but  later,  in  a  mes- 
sage to  Congress,  asserted  his  right  to  suspend  the  writ 
of  habeas  corpus  without  limitation  or  interference. 


44  FEDERAL    USURPATION 

On  September  24,  1862,  the  President  issued  a  proc- 
lamation ordering  that  all  persons  discouraging  volun- 
tary enlistments,  resisting  military  drafts,  guilty  of  any 
disloyal  practices,  or  of  ofifering  aid  and  comfort  to  the 
rebels,  should  be  subject  to  martial  law  and  liable  to 
trial  by  a  military  commission,  and  that  the  writ  of 
habeas  corpus  should  be  suspended  in  respect  to  all  such 
persons  arrested  or  held  by  military  authority.  It  is  to 
be  observed  that  this  last  order  of  the  President  applied 
to  all  parts  of  the  North  where  there  was  no  insurrec- 
tion, yet  it  caused  the  arrest  of  men  without  warrant, 
detained  them  without  a  hearing,  and  convicted  them  of 
treason  and  murder  by  a  court-martial  without  a  jury 
and  without  observing  a  single  one  of  the  guarantees  in 
the  Bill  of  Rights  of  the  Constitution, 

The  writ  of  habeas  corpus  was  secured  to  English 
people  by  the  Great  Charter  which,  Mr.  Hallam  tells  us, 
was  sent  to  all  the  sheriffs  of  England,  was  kept  posted 
in  each  cathedral  and  church,  and  publicly  read  twice  a 
year,  accompanied  by  solemn  sentences  of  excommuni- 
cation against  all  who  should  infringe  it,  and  provided 
that  "  any  judgments  contrary  to  these  provisions 
should  be  invalid  and  '  holden  for  naught.' "  This 
charter,  made  sacred  by  these  sanctions  and  handed 
down  for  five  hundred  years  by  the  English  people,  was 
deliberately  disregarded.  Thousands  of  men,  without 
any  evidence  whatever  of  treasonable  words  on  their 
part,  were  dragged  from  their  homes  to  the  different 
fortresses  of  the  government  upon  a  mere  telegram 
from  Washington  to  a  United  States  marshal  or  even 
a  police  officer  of  a  state.    The  newsboys  of  the  street 


CIVIL    WAR   AND    RECONSTRUCTION    PERIOD     45 

were  arrested  for  the  offense  of  selling  newspapers 
which  some  military  commander  disapproved.  Old  men 
of  seventy  were  dragged  from  their  beds  at  midnight 
and  hurried  to  prison  by  squads  of  soldiers.  Many  loyal 
men  of  the  North  were  shocked  by  these  brutal  arrests, 
and  all  classes  of  men  rose  up  in  protest  against  such 
usurpation  of  power.^  Even  John  Sherman  wrote  to  his 
brother  of  "  a  wanton  and  unnecessary  use  of  power  to 
arrest  without  trial." 

There  lies  before  me  as  I  write,  a  book  under  the 
title  of  "  The  American  Bastile,"  written  by  one  John 
A.  Marshall,  bearing  date  of  August,  1869,  i"  which  he 
describes  the  circumstances  of  the  arrest  of  seventy  citi- 
zens imprisoned  in  these  fortresses  from  all  of  the 
Northern  States  except  New  Hampshire,  Rhode  Island, 
and  Wisconsin.  Among  them  were  foreign  ministers. 
United  States  senators,  members  of  Congress,  members 
of  state  legislatures,  judges,  lawyers,  ministers,  doc- 
tors, farmers,  editors,  merchants,  and  men  from  all  the 
other  walks  of  life.  The  details  connected  with  the 
arrests  of  these  men,  as  described  by  him,  are  as  terrible 
as  those  accompanying  the  state  arrests  in  Russia  to- 
day, and  one  draws  back  from  his  vivid  descriptions  with 
doubt  lest  perhaps  Mr.  Marshall's  experiences  caused 
him  to  exaggerate  the  conditions. 

But  we  are  not  dependent  upon  his  statements  for 
the  facts.  A  few  years  ago  the  United  States  Govern- 
ment published  the  records  of  these  different  fortresses 
showing  these  arrests  and  the  names  of  many  of  the  pris- 
oners, the  time  when  they  were  brought  to  the  place  of 
'  Peck,  Twenty  Years  of  the  Republic,  p.  114. 


46  FEDERAL    USURPATION 

imprisonment,  the  records  made  by  the  keepers  of  the  for- 
,  tresses,  and  the  correspondence  between  the  relatives 
and  Secretary  Seward.^  These  records,  by  the  Govern- 
ment's own  statement,  show  that  hundreds  of  simple- 
minded  men  living  in  country  villages  in  different  parts 
of  the  United  States  had  unwittingly  spoken  a  word 
now  and  then  which  political  adversaries  had  construed 
as  evidence  of  treasonable  intent.  Information  was 
given  to  the  War  Department  or  to  the  Department  of 
State,  and  the  matter  was  laid  before  some  United 
States  marshal  or  police  officer,  for  all  police  officers 
of  any  state  or  town  or  district  were  authorized  to  ar- 
rest and  imprison.  These  published  prison  records 
have  a  most  suspicious  appearance.  Descriptions  are 
given  of  many  of  the  men,  but  not  their  names.  Even 
their  residence  in  many  cases  is  not  disclosed.  Noth- 
ing is  said  of  the  nature  of  their  offenses.  There,  far 
away  from  their  homes,  they  were  imprisoned  by  the 
government  for  months,  until  the  influence  of  their 
congressman  or  of  other  powerful  friends  secured  their 
release.  The  practices  of  Russia  to-day  of  casting  men 
into  solitary  dungeons  and  keeping  them  for  months 
without  trial,  and  of  finally  trying  them  at  night  by 
drumhead  court-martials  and  condemning  them  with- 
out any  of  the  safeguards  of  English  law,  is  merely  a 
repetition  in  almost  every  feature  of  the  action  of  our 
National  Government  toward  its  citizens  in  the  Civil 
War. 

Such  a  storm  of  indignation  arose  from  the  people 
in   every  part  of  the  North  at  these   arrests  that  on 
'  War  of  Rebellion  House  Documents,  vol.  Ixvii. 


CIVIL    WAR   AND   RECONSTRUCTION    PERIOD     47 

March  3,  1863,  Congress  authorized  the  President  dur- 
ing the  RebelHon  to  suspend  the  privileges  of  the  writ 
of  habeas  corpus  in  any  case  throughout  the  United 
States  or  any  part  thereof.  This  authorization  provided 
for  the  discharge  of  any  person  held  in  duress,  upon  the 
failure  of  the  Federal  Jury  sitting  in  the  district  where 
the  imprisonment  occurred  to  indict  at  its  next  session 
after  the  arrest.  To  secure  action  on  the  part  of  the 
grand  juries  and  give  them  opportunity  to  investigate 
the  cases,  it  was  provided  that  the  officials  having 
charge  of  the  prisoners  should  present  lists  to  the  court 
in  each  judicial  district  of  the  United  States.  In  case 
of  failure  to  indict  them  it  was  provided  that  they  be 
released.  But  few  indictments  were  ever  obtained,  the 
arrests  proving  unwarrantable  in  nearly  all  of  the  cases. 
In  connection  with  the  act  of  March  3,  1863,  an  act 
of  indemnity  making  the  prior  illegal  acts  of  the  Presi- 
dent legal,  and  relieving  him  from  all  liability,  was 
passed  by  Congress.  It  also  provided  that  for  every 
arrest  caused  by  him  in  the  future  he  should  be  free 
from  legal  liability.  The  military  commissions  with 
authority  to  try  the  people  arrested  were  continued. 
The  same  act  provided  that  in  case  an  action  was 
brought  in  any  state  court  against  an  officer  acting 
under  an  order  of  the  President  or  his  secretaries,  to 
recover  damages  for  an  arrest  or  false  imprisonment, 
the  officer  thus  sued  should  have  the  right  to  apply 
to  the  United  States  Circuit  Court  in  the  same  district 
in  which  the  action  was  brought,  and  said  court,  by  an 
order  or  writ,  could  remove  the  case  to  the  United 
States    Circuit    Court   to   be   tried    there    as    if    origi- 


48  FEDERAL   USURPATION 

nally  commenced  therein.  The  United  States  Su- 
preme Court,  however,  declared  this  law  unconstitu- 
tional.^ 

On  September  15,  1863,  Mr.  Lincoln  proclaimed  a 
general  suspension  of  the  writ  of  habeas  corpus,  limit- 
ing it  to  persons  held  as  prisoners  of  war,  spies,  or 
aiders  or  abettors  of  the  enemy.  The  words  "  aiders 
or  abettors  "  were  defined  by  him  as  follows :  "  He  is 
to  be  an  enemy  who  seeks  to  exalt  the  motives,  char- 
acter, and  capacity  of  armed  traitors ;  to  magnify  their 
resources,  etc.  He  who  overrates  the  success  of  our  ad- 
versaries or  underrates  our  own,  and  he  who  seeks  false 
causes  of  complaint  against  our  government,  or  inflames 
party  spirit  among  ourselves  and  gives  to  the  enemy  that 
^noral  support  which  is  more  valuable  to  them  than  regi- 
ments of  soldiers  or  millions  of  dollars."  United  States 
deputy  marshals  and  police  officers  continued  to  deter- 
mine on  their  own  judgment  whether  the  citizens  over- 
rated the  successes  of  the  South  or  underrated  the  suc- 
cesses of  the  North.  They  continued  to  determine  the 
"  false  causes  of  complaint "  against  the  officers  of  our 
government,  and  hundreds  more  men  were  hurried  to 
prison. 

Finally,  after  the  war  had  ended,  and  thousands  of 
people  had  been  arrested  who  lived  far  removed  from 
the  seat  of  war,  the  following  case  reached  the  United 
States  Supreme  Court,  which  determined  that  the  Gov- 
ernment had  no  right  to  arrest  men  in  the  North  without 
warrant  and  to  try  them  before  military  commissions. 
On  August  13,  1864,  Lambdin  P.  Milligan,  a  lawyer 
*  The  Justices  v.  Murray,  76  U.  S.,  274. 


CIVIL   WAR   AND    RECONSTRUCTION    PERIOD     49 

residing  at  Huntington,  Indiana,  delivered  a  political 
speech  at  a  large  meeting  at  Fort'  Wayne,  Indiana.  The 
speech  criticised  the  National  Government,  and  partic- 
ularly Governor  Morton  of  Indiana,  who  at  that  time 
was  a  candidate  for  reelection.  On  October  5,  1864,  Mil- 
ligan  was  arrested  and  taken  to  Indianapolis  before 
Brevet  Major  General  Hovey,  military  commandant 
of  the  district  of  Indiana.  On  the  21st  of  that  month 
he  was  placed  on  trial  before  a  military  commission, 
being  charged  with  conspiracy  against  the  Government 
of  the  United  States,  oflfering  aid  and  comfort  to  rebels, 
and  of  disloyal  practices.  He  was  found  guilty  and  sen- 
tenced to  death.  He  contended  that  the  military  commis- 
sion had  no  authority  to  try  him  or  condemn  him,  and 
thereafter  petitioned  a  United  States  Court  judge  for  a 
writ  of  habeas  corpus.  Upon  denial,  an  appeal  was  taken 
to  the  Circuit  Court,  which,  being  divided  upon  the  ques- 
tion of  his  right  to  the  writ,  certified  the  matter  to  the 
United  States  Supreme  Court. 

In  December,  1866,  the  highest  court  of  the  nation, 
for  the  first  time,  had  an  opportunity  of  determining  the 
right  of  the  United  States  Government  to  make  these 
arrests  and  try  the  persons  arrested  under  military  com- 
missions in  portions  of  the  United  States  removed  from 
the  seat  of  war.  Justice  David  Davis  wrote  the  opinion 
on  behalf  of  the  court,  holding  that  the  military  commis- 
sion had  no  jurisdiction  to  convict  Milligan,  and  said: 
"  It  follows  from  what  has  been  said  on  this  subject  that 
there  are  occasions  when  martial  rule  can  be  properly  ap- 
plied. If,  in  foreign  invasion  or  civil  war,  the  courts  are 
actually  closed,  and  it  is  impossible  to  administer  criminal 


50  FEDERAL    USURPATION 

justice  according  to  law,  then,  on  the  theater  of  active 
military  operations,  where  war  really  prevails,  it  is  neces- 
sary to  furnish  a  substitute  for  the  civil  authority  thus 
overthrown,  to  preserve  the  safety  of  the  army  and  so- 
ciety ;  and  as  no  power  is  left  but  the  military,  it  is  al- 
lowed to  govern  by  martial  rule  until  the  laws  again 
have  their  free  course.  As  necessity  creates  the  rule,  so 
it  limits  its  duration;  for,  if  this  government  is  contin- 
ued after  the  courts  are  reinstated,  it  is  a  great  usurpa- 
tion of  power.  Martial  rule  can  never  exist  zvliere  the 
courts  are  open,  and  in  the  proper  and  unobstructed  ex- 
ercise of  their  jurisdiction,  it  is  also  confined  to  the  local- 
ity of  actual  war."  ^ 

There  was  talk  among  the  radical  men  of  impeach- 
ing the  judges,  and  John  A.  Bingham,  a  member  of  the 
House  of  Representatives,  and  a  bitter  partisan,  said: 
"  Let  us  sweep  away  at^&ce  every  appellate  jurisdiction 
in  all  cases,  if  the  court  by  virtue  of  its  original  juris- 
diction usurps  the  power  to  decide  political  cases  and 
defy  a  free  people's  will."  Thaddeus  Stevens,  referring 
to  the  same  case,  said  in  the  House  of  Representatives, 
"  That  decision,  although  in  terms  and  purposes  not  as 
infamous  as  the  Dred  Scott  decision,  is  yet  far  more  dan- 
gerous in  its  operation  upon  the  lives  and  liberties  of  the 
loyal  men  of  this  country." 

There  is  a  story,  one  of  the  many  attributed  to  Mr. 
Lincoln,  in  which  he  is  reported  to  have  said  to  his  Sec- 
retary of  the  Treasury :  "  The  South  has  violated  the 
Constitution  to  break  up  the  Union ;  I  am  ready  to  vio- 
late it  to  preserve  the  Union :  and  between  you  and  me, 
•  Ex  parte  Milligan,  4  Wallace,  2. 


CIVIL   WAR   AND    RECONSTRUCTION    PERIOD     51 

Chase,  before  we  get  through  this  Constitution  is  going 
to  have  a  tough  time."  ^  It  is  certain  at  least  that  he  wrote 
to  Mr.  Hodges  on  April  8,  1864,  "  I  felt  that  measures, 
otherwise  unconstitutional,  might  become  lawful  by  be- 
coming indispensable  to  the  preservation  of  the  Constitu- 
tion through  the  preservation  of  the  Union.  Right  or 
wrong,  I  assumed  this  ground  and  now  avow  it."  ^  There 
is  no  evidence  that  Lincoln  himself  ever  personally  ordered 
any  of  these  arrests.  The  lovable  character  of  Mr.  Lin- 
coln, his  reconstruction  of  some  of  the  Southern  States 
upon  liberal  and  humane  terms,  his  last  words  of  mercy 
toward  the  South,  his  sweet  and  gentle  life  and  noble 
purposes,  will  endear  him  forever  to  the  American  peo- 
ple, and  we  review  these  acts  of  his  administration  only 
for  the  purpose  of  showing  the  danger  of  such  usurpa- 
tions of  power. 

In  August,  1 86 1,  Congress  passed  an  act  known  as 
the  Confiscation  Act.  This  act  directed  the  President 
to  cause  the  seizure  of  all  the  property  of  whatever  kind 
belonging  to  specified  classes  of  persons,  namely:  offi- 
cers of  the  rebel  army  and  navy,  officers  of  the  civil  ad- 
ministration of  the  Southern  Confederacy  and  of  its 
so-called  Federal  State  judges,  and  persons  owning  prop- 
erty in  a  loyal  state  who  should  give  aid  and  comfort 
to  the  Rebellion.  The  property  so  seized  was  to  be 
proceeded  against  by  action  in  rem  in  the  United  States 
courts,  and  the  proceeds  were  to  be  used  for  the  support 
of  the  army  of  the  United  States.    Of  this  act.  Professor 

»  Bradford,  The  Lessons  of  Popular  Government,  vol.  II, 
p.  390,  note. 

*  Bryce,  The  American  Commonwealth,  vol.  i,  p.  388,  note. 


52  FEDERAL   USURPATION 

Dunning  says :  ^  "  This  act  assumed  the  power  in  Con- 
gress to  deprive  several  millions  of  persons  of  all  their 
property,  and  this  by  simple  legislative  act.  By  the  the- 
ory of  our  Constitution,  such  power  must  be  granted 
by  the  organic  law,  or  be  inferable  from  some  clearly 
granted  power.  There  was  no  claim  of  an  express  grant. 
By  implication,  the  power  was  held  to  be  deducible  from 
the  clauses  authorizing  Congress  '  to  declare  war,'  '  to 
make  rules  concerning  captures  on  land  and  water,'  '  to 
provide  for  calling  forth  the  militia  to  .  .  .  suppress  in- 
surrections,' and  finally,  *  to  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution  the  fore- 
going powers.'  On  the  other  hand,  the  Constitution  con- 
tains the  following  prohibitions :  '  No  bill  of  attainder 
shall  be  passed ' ;  '  no  person  shall  be  .  .  .  deprived  of 
.  .  .  property,  without  due  process  of  law;  nor  shall 
private  property  be  taken  for  public  use  without  just 
compensation ' ;  and  finally,  '  no  attainder  of  treason  shall 
work  .  .  .  forfeiture  except  during  the  life  of  the  per- 
son attainted.'  The  exercise  of  authority  under  the 
grants  enumerated  involved  of  necessity  the  violation  of 
these  prohibitions.  Respect  for  both  at  the  same  time  was 
inconceivable." 

Everyone  acquainted  with  the  Civil  War  who  has 
carefully  watched  events  since  that  time  must  have  seen 
a  gradually  accelerated  movement  of  the  centralization 
of  government  commencing  at  that  time.  This  was 
brought  about  by  the  government's  issue  of  legal-tender 
notes,  by  the  creation  of  our  national  banking  system, 

>  Dunning,  Essays  on  the  Civil  War  and  Reconstruction, 
pp.  30,  31. 


CIVIL    WAR   AND    RECONSTRUCTION    PERIOD     53 

and  especially  by  the  protective  tariff  then  instituted  and 
since  continued.  Hamilton,  in  his  masterly  statement  on 
the  currency,  said  that  bills  of  credit  and  paper  emissions 
were  expressly  forbidden  to  the  states  by  our  present 
Constitution,  and  that  the  spirit  of  that  prohibition  ex- 
tended to  the  National  Government.  Notwithstanding 
that  it  was  the  intent  of  the  framers  of  the  Constitution 
to  prohibit  the  National  Government,  as  well  as  the 
states,  from  making  paper  money  legal  tender.  Congress, 
in  1862,  declared  such  paper  lawful  money  and  a  legal 
tender  in  payment  of  public  and  private  debts,  and  au- 
thorized the  issue  of  $150,000,000  in  notes,  our  present 
greenbacks.  Never  before  had  a  statute  of  the  United 
States  made  anything  but  gold  and  silver  coin  a  legal 
tender  in  payment  of  debts.  The  United  States  Su- 
preme Court,  at  a  later  date,  in  a  suit  where  these  notes 
had  been  tendered  and  rejected  in  payment  of  a  debt 
existing  before  the  war,  held  that  the  act  making  them 
legal  tender  was  unconstitutional ;  but  afterwards,  when 
the  court  was  differently  constituted,  reversed  its  own 
decision.  Without  discussing  further  at  the  present  time 
the  constitutionality  of  this  issue,  all  will  acknowledge 
that  the  exercise  of  the  power  has  made  the  government 
all  powerful  in  banking  and  commercial  affairs.  When 
a  government  issues  the  money  of  the  country  and  has 
the  tempting  power  to  increase  the  amount  for  use  in 
aiding  private  bankers,  such  power  makes  the  govern- 
ment almost  omnipotent. 

On  February  5,  1791,  the  first  national  bank  was  es- 
tablished. At  that  time  there  were  only  three  banks  in 
the  United  States,  and  it  was  contended  that  it  would 


54  FEDERAL    USURPATION 

secure  the  collection,  transportation,  and  circulation  of 
the  national  revenue  from  one  part  of  the  country  to 
another.  This  was  thought  to  be  a  sufficient  justification 
for  its  creation.  It  was  proposed  in  the  Constitutional 
Convention  to  insert  a  provision  for  the  creation  of  such 
a  corporation,  but  this  was  opposed  by  James  Madison 
and  many  of  the  other  members,  and  was  defeated.^ 
When  the  question  of  the  renewal  of  the  bank  charter 
came  up  in  1810,  Henry  Clay  declared  it  as  his  opinion 
that  the  Constitution  conferred  no  power  upon  Congress 
to  charter  a  bank  or  to  renew  its  charter.  Clay  well  said, 
"  Is  it  to  be  imagined  that  a  power  so  vast  would  have 
been  left  by  the  wisdom  of  the  Constitution  to  doubtful 
inference?  ...  If,  then,  you  could  establish  a  bank  to 
collect  and  distribute  revenue,  it  ought  to  be  expressly 
restricted  to  the  purposes  of  such  collection  and  distribu- 
tion." 2 

Now  the  original  bank  was  permitted  for  the  re- 
stricted purposes  of  the  collection  and  distribution  of  the 
moneys  of  the  United  States  Government,  which  at  that 
time  were  collected  at  different  points  throughout  the 
whole  country.  Because  of  the  small  number  of  banks, 
it  was  regarded  as  a  necessary  means  of  carrying  on 
the  fiscal  powers  of  the  government.  When  the  na- 
tional banking  system  was  established  during  the  war 
there  were  ample  banking  facilities  throughout  the  coun- 
try. The  National  Government,  however,  by  passing  an 
act  imposing  a  tax  of  ten  per  cent  upon  the  circulation 
of  these  state  banks,  actually  destroyed  them  and  sub- 

>4  Elliot's  Deb.,  pp.  413,  474,  6n;  5  Elliot's  Deb.,  p.  440. 
» 4  Elliot's  Deb.,  p.  458. 


CIVIL   WAR   AND   RECONSTRUCTION    PERIOD     55 

stituted  its  vast  banking  system,  now  counting  upward 
of  fifteen  thousand  banks  scattered  in  every  city  and  vil- 
lage of  the  land.^  It  is  true  that  the  United  States  Su- 
preme Court,  in  the  case  of  McCulloch  v.  Maryland,  sus- 
tained the  constitutionality  of  the  act  renewing  in  1816 
the  charter  of  the  bank  of  the  United  States.  But 
the  charter  of  this  bank  was  renewed  as  the  fiscal  agent 
of  the  government  at  a  time  when  there  were  compara- 
tively few  banks.  The  national  banking  system,  how- 
ever, was  created,  as  we  have  said,  to  supplant  the  State 
banks,  and  did  supplant  them  by  taxing  their  circulation 
out  of  existence.  The  result  of  the  national  banking  act 
was  the  creation  of  thousands  of  banks,  not  a  single  bank. 
Senator  Beveridge,  of  Indiana,  in  The  Reader  of 
March,  1907,  says :  "  State  rights  denied  the  existence 
of  this  power,  '  the  power  of  the  general  government  to 
create  a  national  bank,'  and  it  seemed  that  state  rights 
had  the  best  of  the  argument,  contending  that  the  na- 
tional government  has  only  the  enumerated  powers,  and 
has  no  power  except  such  as  is  expressly  delegated  to 
it  by  the  Constitution."  However  this  may  be,  the  crea- 
tion of  thousands  of  banks  scattered  all  over  the  land 
more  than  any  other  one  cause  has  centralized  power  in 
the  National  Government.  Once  admit  the  authority 
to  create  corporations  by  the  government,  and  the  other 
authority  to  interfere  with  the  internal  aflfairs  of  the 
states  through  the  power  to  regulate  commerce,  and  it 
would  seem  to  follow  that  Congress  may  enact  a  general 
law  for  the  creation  of  as  many  corporations  as  pro- 
moters desire,  may  control  railways  and  all  means  of 
•  Veazie  Bank  v.  Fenno,  8  Wallace,  533. 


56  FEDERAL   USURPATION 

intercommunication  and  reduce  the  states  to  insignifi- 
cance. 

Under  the  cover  of  levying  customs  duties  at  sea- 
ports, Congress,  by  the  war  tariffs,  took  control  of  the 
whole  manufacturing  industry  of  the  country.  About 
every  manufacturer  in  the  whole  land  is  now  looking  to 
Congress  for  the  creation  of  prosperity  by  obstructing 
foreign  commerce  through  high  protective  tariffs.  Un- 
der the  power  to  regulate  commerce  the  government 
destroys  foreign  imports  or  cripples  them  to  such  an  ex- 
tent as  will  benefit  the  few  thousands  who  manufacture 
the  same  kind  of  goods  in  our  own  country.  This  is 
done  at  the  expense  of  tens  of  millions  who  buy  them  at 
enhanced  prices,  and  it  is  the  exercise  of  the  most  des- 
potic power  conceivable  on  the  part  of  government.  In 
this  way  the  United  States  Government  has  come  into 
close  touch  with  these  manufacturing  interests  all  over 
the  land,  and  is  actually  fixing  the  price  of  the  neces- 
saries of  life  for  eighty  millions  of  people.  It  exercises 
the  power  of  determining  the  price  of  every  shred  of 
clothing  which  a  man  wears,  of  every  piece  of  furniture 
in  his  home,  of  every  piece  of  lumber,  every  nail,  every 
piece  of  glass  that  enters  into  the  construction  of  his 
house.  Nobody  would  doubt  that  a  law  attempting  to  fix 
the  prices  at  which  the  domestic  manufacturer  could  sell 
his  product  would  be  unconstitutional,  yet  the  Govern- 
ment indirectly,  by  means  of  its  taxing  power,  and  its 
regulation  of  foreign  commerce,  passes  a  law  which  en- 
hances the  price  of  the  necessaries  of  life  to  everyone. 
This  despotic  power  in  government,  more  than  anything 
else,  has  brought  about  corruption.     It  has  turned  the 


CIVIL   WAR   AND   RECONSTRUCTION    PERIOD     57 

eyes  of  fifty  thousand  manufacturers  to  Washington  for 
governmental  privilege.  It  is  simply  a  usurpation  of 
power  on  the  part  of  the  government  exercised  for  the 
benefit  of  the  few  at  the  expense  of  the  remainder  of  its 
citizens. 

President  Lincoln  stated  that,  in  his  opinion,  it  was 
impossible  for  a  state  to  secede  from  the  Union.  He  re- 
affirmed his  statement  in  his  first  message  to  Congress, 
and  in  his  Non-Intercourse  Proclamation  of  August 
16,  1861,  declared,  "Not  the  states  but  the  inhabitants 
of  the  states  were  in  insurrection  against  the  United 
States."  The  theory  which  he  maintained  throughout 
the  war  and  down  until  his  death  was  that  the  state 
was  indestructible  either  through  its  own  act  or  through 
the  act  of  the  United  States  Government.  During  his 
lifetime  he  established  a  state  government  in  Louisiana 
and  one  or  two  other  of  the  Southern  States,  and  he  main- 
tained until  the  day  of  his  death  that  the  states  were  in 
the  Union  and  had  never  been  out  of  the  Union.  In  the 
last  speech  which  he  ever  made,  April  11,  1865,  four 
days  before  his  death  by  assassination,  he  said :  "  I  am 
much  censured  from  some  supposed  agency  in  setting  up 
and  seeking  to  sustain  the  new  state  government  of 
Louisiana.  In  this,  I  have  done  just  so  much  as,  and 
no  more  than,  the  public  knows." 

Never  once  in  diplomatic  correspondence  or  in 
proclamations  or  in  any  act  of  Congress  during  the 
war,  did  the  Federal  Government  directly  admit  the  ex- 
istence of  a  state  of  war  in  the  South.  The  carrying 
of  mails  and  the  performance  of  all  governmental  func- 
tions in  the  South  continued  during  the  war  so  far  as 


58  FEDERAL    USURPATION 

the  Government  was  able  to  carry  them  on.  At  the 
close  of  the  war  the  United  States  courts  commenced 
to  sit  in  the  circuits  of  the  South  and  the  United  States 
Supreme  Court  commenced  to  hear  appeals  from  the 
Southern  States.  Lincoln's  view  of  the  indissoluble 
character  of  the  Union  was  sustained  by  the  United 
States  Supreme  Court.  Chief  Justice  Chase,  speaking  for 
the  Court,  said  of  the  ordinances  of  secession :  "  They 
were  utterly  without  operation  in  law.  The  obligations  of 
the  state,  as  a  member  of  the  Union  and  as  a  citizen  of 
the  United  States,  remained  perfect  and  unimpaired.  It 
certainly  follows  that  the  state  did  not  cease  to  be  a 
state,  nor  her  citizens  to  be  citizens  of  the  Union."  ^ 

President  Johnson  adopted  the  attitude  of  Lincoln 
toward  the  Southern  States  and  tried  to  carry  out  the 
dead  President's  ideas.  He  established  a  state  govern- 
ment in  each  of  the  Southern  States.  The  thirteenth 
amendment  to  the  Constitution  was  submitted  to  many 
of  these  states  and  was  approved  by  them,  so  that  it 
would  seem  that  their  legality  was  recognized  by  Con- 
gress. The  temporary  organization  of  the  Southern 
States  under  the  proclamations  of  Presidents  Lincoln 
and  Johnson  were  permitted  to  remain  in  force  until 
the  spring  of  1867.  The  Republican  Party  in  the  House 
of  Representatives,  led  by  Thaddeus  Stevens,  openly 
admitted  that  they  desired  to  reconstruct  the  Southern 
States  so  as  to  destroy  the  Democratic  majorities  which 
had  existed  there  before  the  war.  In  the  language  of 
Mr.  Stevens,  they  maintained  that  the  Southern  States 
were  only  "  dead  carcasses  lying  within  the  L^nion.  .  .  . 
•  Texas  v.  White,  74  U.  S.,  726  of  opinion. 


CIVIL    WAR   AND    RECONSTRUCTION    PERIOD     59 

They  have  torn  their  constitutional  states  to  atoms 
and  built  on  their  foundations  fabrics  of  a  totally  differ- 
ent character.  Dead  men  cannot  raise  themselves. 
Dead  states  cannot  restore  their  own  existence  '  as  it 
was.'  Whose  especial  duty  is  it  to  do  it?  In  whom  does 
the  Constitution  place  the  power?  "  ^  And  he  concluded 
that  that  power  was  in  the  Congress  and  that  the  South- 
ern States  might  be  treated  as  subject  provinces  and 
new  states  created  therein. 

Accordingly,  Mr.  Stevens,  as  leader  of  the  House, 
with  a  rancor  of  hatred  never  exceeded,  devised  a  law 
for  the  reconstruction  of  the  Southern  States  as  odious 
for  tyranny  and  cruel  injustice  as  was  ever  conceived 
by  the  perverse  intelligence  of  man.  On  March  2,  1867, 
Congress  passed,  over  the  President's  veto,  a  bill  en- 
titled "  An  Act  to  Provide  for  the  More  Efficient  Gov- 
ernment of  the  Rebel  States."  It  was,  however,  an  act 
for  the  more  thorough  military  subjection  of  the  South- 
ern States  and  is  known  as  The  Reconstruction  Act. 
This  act  recited  that  no  legal  state  government  or  ade- 
quate protection  of  life  and  property  existed  in  the  states 
of  Virginia,  North  Carolina,  South  Carolina,  Georgia, 
Mississippi,  Alabama,  Louisiana,  Florida,  Texas,  and 
Arkansas,  and  it  provided  that  these  states  should  be 
divided  into  five  military  districts  under  the  command 
of  officers  of  the  army,  assigned  thereto  by  the  Presi- 
dent. '  Each  of  these  commanders  was  to  have  under  his 
control  troops  enough  to  enforce  his  authority.  They 
were  endowed  with  unlimited  power  over  all  the  people 
of  each  district,  the  will  of  the  military  commander  tak- 
"  Cox,  Three  Decades  of  Federal  Legislation,  p.  367. 


6o  FEDERAL    USURPATION 

ing  the  place  of  the  law.  He  could  declare  anything  a 
crime  which  he  chose  to  call  so,  and  condemn  and  pun- 
ish whomsoever  he  pleased.  He  was  empowered  to  ar- 
rest the  people  of  his  department  without  warrant,  accu- 
sation, or  proof  of  probable  cause.  He  could  have  them 
tried  before  local  magistrates  or  before  himself.  He  was 
empowered  to  remove  all  local  magistrates  if  he  desired. 
If,  without  his  permission,  a  state  court  presumed  to 
exercise  legal  jurisdiction  over  the  trial  of  a  person  ar- 
rested he  could  break  up  the  trial  and  punish  the  judge 
and  the  jurors. 

In  vetoing  the  bill,  President  Johnson  said :  "  Such 
a  power  has  not  been  wielded  by  any  monarch  in  more 
than  five  hundred  years.  In  all  that  time  no  people  who 
speak  the  English  language  have  borne  such  servitude." 
The  States  of  Mississippi  and  Georgia  hastened  to  com- 
mence actions  in  the  United  States  Supreme  Court,  ask- 
ing the  court  to  enjoin  the  President  from  the  enforce- 
ment of  this  unconstitutional  law  which  they  declared 
would  absolutely  destroy  the  existence  of  their  states, 
but  the  court  held  that  it  had  no  jurisdiction  to  enjoin 
the  action  of  the  President.^ 

The  supplementary  act  of  reconstruction  of  July 
19,  1867,  provided  that  the  commanders  of  any  district 
might  remove  any  state,  municipal,  or  other  official  and 
fill  his  place  subject  only  to  the  disapproval  of  the  gen- 
eral of  the  army;  and  it  was  made  a  duty  of  the  com- 
mander "  to  remove  from  office  all  persons  who  are 
disloyal  to  the  government  of  the  United  States  or  who 

'  Mississippi  v.  Johnson,  4  Wallace,  475;  Georgia  v.  Stanton, 
6  Wallace,  50. 


CIVIL    WAR   AND    RECONSTRUCTION    PERIOD     6l 

use  their  influence  in  any  manner  to  hinder,  delay,  pre- 
vent, or  obstruct  the  due  and  proper  administration  of 
this  act  and  the  acts  to  which  it  is  supplementary." 
The  act  provided  that  no  commander  should  be  bound 
by  any  opinion  of  any  civil  officer  of  the  United  States. 
General  Schofieldwas  assigned  to  the  first  district,  which 
included  Virginia;  General  Sickles  to  the  second  district 
of  North  and  South  Carolina;  General  Pope  to  the  third 
district  of  Georgia,  Alabama,  and  Florida;  General  Ord 
to  the  fourth  district  of  Mississippi  and  Arkansas,  and 
General  Sheridan  to  the  fifth  district  of  Louisiana  and 
Texas. 

Now  observe  how  some  of  these  generals  ruled 
their  departments.  General  Sickles  prohibited  the 
manufacture  of  whisky  in  North  Carolina,  saying  that 
the  grain  was  needed  for  food,  and  he  prohibited  the 
hotel  keepers  from  selling  intoxicating  liquor;  he  cre- 
ated a  trustee  of  Newbern  Academy,  enacted  stay  laws 
in  North  and  South  Carolina,  and  aboHshed  imprison- 
ment for  debt;  suspended  the  sale  of  property  upon 
execution  for  liabilities  contracted  before  December  19, 
i860,  and  suspended  the  foreclosure  of  mortgages  for 
one  year.  In  his  mightiness  he  decreed  that  the  wages 
of  agricultural  labor  were  liens  upon  the  crops;  created 
homestead  exemptions  for  those  having  families  de- 
pendent upon  their  labor;  abolished  distress  for  rent; 
ordered  that  the  currency  of  the  United  States  be  recog- 
nized as  legal  tender;  decreed  that  absent  debtors  be  ex- 
empted from  attachment,  and  forbade  bail  in  suits 
brought  to  recover  ordinary  contract  debts.  He  pro- 
hibited discrimination   in   public   conveyances   between 


62  FEDERAL   USURPATION 

citizens  because  of  color,  and  decreed  that  anyone  in- 
jured by  such  discrimination  had  a  right  of  action  for 
damages.  He  acted  as  a  reviewing  court  and  set  aside 
a  decree  of  the  South  CaroHna  Court  of  Chancery  pro- 
viding that  the  portion  of  a  fund  raised  to  remount  a 
Confederate  cavalry  force  in  1865  remaining  unused 
was  to  be  returned  to  the  contributors,  and  he  judicially 
determined  that  the  money  belonged  to  the  United 
States. 

General  Pope  removed  the  mayor,  the  chief  of  po- 
lice, and  other  municipal  officers  of  Mobile,  and  filled 
their  places  with  "  efficient  Union  men  " ;  decreed  that 
the  printing  patronage  in  his  department  should  be 
given  only  to  the  newspapers  that  did  not  oppose  re- 
construction;  allowed  Republican  candidates  for  office 
in  his  department  to  act  as  election  officials,  charged 
with  the  supervision  of  the  voting  in  which  they  had 
an  interest,  and  authorized  them  to  receive  the  votes 
of  persons  who  were  not  registered  in  the  precinct  in 
which  they  offered  their  votes. 

General  Sheridan,  at  New  Orleans,  removed  Gover- 
nor Wells,  of  Louisiana,  and  appointed  another  man 
as  governor  in  his  place;  decreed  that  colored  men 
should  be  accepted  as  jurors;  abolished  the  Louisiana 
Levee  Board  and  assigned  its  duties  to  commissioners 
of  his  own  appointing.  He  also  abrogated  an  act  of 
the  Texas  Legislature  arranging  the  judicial  districts 
in  that  state,  upon  the  ground  that  the  act,  as  he  be- 
lieved, had  been  passed  for  the  purpose  of  legislating 
two  Union  judges  out  of  office. 

General  Ord  suspended  proceedings  looking  to  the 


CIVIL    WAR   AND    RECONSTRUCTION    PERIOD     63 

sale  of  an  estate  on  account  of  a  deed  of  trust  for 
money  due  for  the  purchase  of  negroes;  commanded 
that  ilHcit  stills  and  their  products  be  sold  for  the  bene- 
fit of  the  poor  on  the  ground  that  "  poverty  increased 
where  whisky  abounds  " ;  suspended  until  the  end  of  the 
year  1867  the  judgment  sale  of  lands  under  cultivation, 
crops,  or  agricultural  implements,  in  actions  arising  be- 
fore January  i,  1866;  and  caused  the  arrest  and  con- 
viction by  court-martial  of  W.  H.  McCardle,  the  editor 
of  a  Vicksburg  newspaper,  on  the  charge  that  he  had 
published  articles  in  his  paper  to  incite  the  people  to  a 
breach  of  the  peace  and  to  impede  reconstruction.^ 

McCardle  procured  a  writ  of  habeas  corpus  from 
Judge  Hill  of  the  United  States  District  Court.  Upon 
the  return  thereof  General  Ord  set  forth  that  he  held 
the  prisoner  by  authority  of  the  acts  of  Congress  known 
as  the  Reconstruction  Acts,  and  the  court  dismissed  the 
writ.  McCardle  appealed  from  the  i  decision  to  the  Cir- 
cuit and  then  to  the  Supreme  Court  of  the  United 
States,  which  denied  a  motion  to  dismiss  his  appeal  and 
heard  the  case  argued.  The  case,  inasmuch  as  it  in- 
volved the  constitutionality  of  the  Reconstruction  Acts, 
was  argued  very  fully  before  the  United  States  Supreme 
Court  between  the  second  and  ninth  days  of  March, 
1868.  Mr.  Rhodes  says :  ^  "  The  constitutionality  of  the 
Reconstruction  Acts  was  involved,  and  as  five  out  of  the 
nine  Supreme  Court  judges  believed  them  unconstitu- 
tional (so  an  apparently  well-founded  report  ran)  the 

'  Dunning,  Essays  on  the  Civil  War  and  Reconstruction, 
pp.  162—72. 

2  Rhodes,  History  of  the  United  States,  vol.  vi,  pp.  96,  97. 


64  FEDERAL    USURPATION 

Republicans  in  Congress  were  much  alarmed.  The 
House  passed  a  bill  requiring  two  thirds  of  the  judges 
to  concur  before  any  law  should  be  deemed  invalid,  but 
this  was  never  brought  to  the  Senate  from  its  Judiciary 
Committee.  Later,  however,  the  two  Houses  agreed  on 
an  act  passing  the  same  over  the  President's  veto 
(March  27,  1868)  which,  though  general  in  its  terms, 
took  away  from  the  Supreme  Court  its  jurisdiction  in 
the  McCardle  case  and  the  appeal  was  therefore  dis- 
missed." ^ 

This  method  of  heading  oflf  appeals  was  a  common 
one  in  Reconstruction  days.  About  every  important  act 
passed  in  that  period  when  it  once  reached  the  United 
States  Supreme  Court  was  declared  unconstitutional. 
The  Tenure  of  Office  Act  was  another  illustration  of 
such  methods,  practically  taking  away  from  President 
Johnson  his  right  of  removal  from  office.  He  removed 
Stanton,  Secretary  of  the  War  Department,  putting 
General  Thomas  in  his  place.  An  altercation  and  arrest 
followed,  and  an  efifort  was  made  by  the  attorney-gen- 
eral to  raise  the  question  of  the  constitutionality  of  this 
act  by  appeal,  but  the  complaint  of  Secretary  Stanton 
was  withdrawn  and  the  effort  to  test  its  constitutionality 
thus  destroyed. 

In  1789  the  leading  members  of  the  House  of  Rep- 
resentatives discussed  at  great  length  the  power  of  the 
President  of  the  United  States  to  remove  a  Secretary  of 
the  Department  of  Foreign  Affairs  from  office  without 
the  consent  of  the  Senate,  and  it  was  determined,  by  a 
vote  of  thirty-four  to  twenty,  that  the  President  had  full 
»  Ex  parte  McCardle,  6  Wallace,  634;  7  Wallace,  512. 


CIVIL   WAR   AND   RECONSTRUCTION    PERIOD     65 

power  to  remove  without  the  concurrence  of  the  Sen- 
ate.^ The  determination  then  made  was  followed  until 
the  administration  of  President  Johnson,  and  then  the« 
Tenure  of  Office  Act  was  passed  for  the  purpose  of 
depriving  him  of  the  right  of  removal.  Since  that  time 
the  right  has  been  acknowledged  and  to-day  is  unques- 
tioned. 

The  Reconstruction  Act  provided  for  the  election  of 
a  constitutional  convention,  and  the  formation  of  a  con- 
stitutional government  in  each  of  the  Southern  States, 
excluding  the  greater  part  of  the  white  voters  of  those 
states  from  taking  part  in  the  formation  of  their  gov- 
ernment. Then  Congress  made  their  adoption  of  the 
fourteenth  amendment  to  the  Constitution  a  condition 
of  its  receiving  as  members  the  representatives  of  the 
states  which  had  framed  constitutions. 

Congress,  in  April,  1866,  passed  what  was  known  as 
the  Civil  Rights  Act.  On  March  31,  1870,  it  passed  what 
was  known  as  the  Enforcement  Act ;  again  on  February 
28,  1 87 1,  a  third  act  amending  the  Enforcement  Act ;  and 
on  April  20,  1871,  a  fourth  act  amending  the  Enforce- 
ment Act.  All  of  these  laws  were  unconstitutional.  The 
last  amendment  provided  as  follows :  "  If  two  or  more  per- 
sons in  any  state  or  territory  conspire  or  go  in  disguise 
upon  the  highway  or  upon  the  premises  of  another  for 
the  purpose  of  depriving,  either  directly  or  indirectly, 
any  persons  or  class  of  persons  of  the  equal  protection 
of  the  laws  or  of  equal  privileges  and  immunities  under 
the  laws,  or  for  the  purpose  of  preventing  or  hindering 
the  constituted  authorities  of  any  state  or  territory  from 

*  Elliot's  Deb.,  pp.  350-404. 
6 


66  FEDERAL    USURPATION 

giving  or  securing  to  all  persons  within  such  state  or 
territory  the  equal  protection  of  the  laws ;  he  or  they 
are  guilty  of  a  misdemeanor  and,  upon  conviction,  liable 
to  a  fine  of  not  less  than  $500  or  greater  than  $5,000, 
and  imprisonment  for  not  less  than  six  months  nor  more 
than  six  years,  or  both  saicl  fine  and  imprisonment." 

This  law  was  known  as  the  Ku  Khix  Law,  and  it 
sought  to  g^ve  to  the  National  Government  the  power 
to  execute  the  criminal  laws  in  each  of  the  states,  es- 
pecially in  each  of  the  Southern  States  where  it  was 
alleged  that  the  Ku  Klux  were  committing  depreda- 
tions upon  the  property  and  taking  the  lives  of  colored 
people.  For  eleven  years  this  continued  to  be  enforced. 
Finally,  a  case  deciding  their  constitutionality  reached 
the  United  States  Supreme  Court,  and  that  court  held 
that  the  law  was  not  directed  to  the  act  of  a  state,  but 
only  against  the  acts  of  individuals  gathering  for  the 
commission  of  crime,  and  that  the  fourteenth  amend- 
ment to  the  Constitution  did  not  apply  to  such  a  con- 
dition ;  that  the  law  was  directed  merely  against  or- 
dinary crime  in  the  state,  of  which  the  state  courts  had 
exclusive  jurisdiction,  and  that  the  law  was  unconsti- 
tutional and  void.^ 

On  March  i,  1875,  General  Grant  approved  a  bill 
known  as  the  Civil  Rights  Bill,  the  first  bill  mentioned 
above  being  unconstitutional.  Its  object  was  to  secure 
to  negroes  equal  rights  in  inns,  public  conveyances,  and 
places  of  public  amusement,  and  to  prevent  them  from 
being,  deprived  of  the  right  of  sitting  on  juries.     Eight 

•United  States  v.  Harris,  106  U.  S.,  629;  United  States  v. 
Cruikshank,  92  U.  S.,  542. 


CIVIL   WAR   AND    RECONSTRUCTION    PERIOD     67 

years  later  the  United  States  Supreme  Court  declared 
the  first  and  second  sections  of  the  act  null  and  void, 
holding  that  so  long  as  a  state  did  not  pass  a  law  de- 
priving the  negro  of  these  rights  the  Supreme  Court 
could  not  interfere,  since  the  prohibition  of  the  four- 
teenth amendment  was  directed  against  a  state  which 
discriminated  against  a  citizen  for  any  reason,  and  de- 
prived him  of  the  civil  rights  which  other  citizens 
enjoyed ;  and  that,  under  the  fourteenth  amendment, 
Congress  had  no  authority  to  attempt  to  regulate  the 
rights  of  the  citizens  of  the  states,  thus  leaving  the  whole 
question  of  the  social  rights  of  a  citizen  where  it  had 
ever  belonged — to  the  state  governments.^ 

The  constitutions  in  many  of  the  states,  reorganized 
by  carpetbag  politicians,  contained  many  provisions  in- 
tended to  prevent  the  Southern  leaders,  who  had  had  con- 
nection with  the  war,  from  even  earning  their  livelihood. 
In  the  Constitution  of  Missouri  there  was  a  provision 
to  the  eflfect  that  every  person  who  had  aided  and  sym- 
pathized with  the  South  was  incapable  of  holding  any 
office  of  honor  or  profit  or  trust  in  the  state.  No  such 
person  could  be  an  officer,  trustee,  or  manager  of  any 
public  or  private  corporation,  he  could  not  act  as  a 
professor  or  teacher  in  any  educational  institution  or  in 
any  common  school,  nor  could  he  hold  any  real  estate 
or  other  property  in  trust  for  any  church,  religious  so- 
ciety, or  congregation.  An  oath  of  loyalty  was  required 
as  a  condition  precedent  to  his  exercising  the  calling 
of  a  bishop,  priest,  deacon,  clergyman,  or  lawyer,  such 
oath  being  that  he  had  never  directly  or  indirectly  done 
-  Civil  Rights  Cases,  109  U.  S.,  i. 


68  FEDERAL    USURPATION 

any  of  the  acts  of  disqualification  against  which  the 
amendment  was  leveled. 

Sixty  days  after  this  Constitution  took  effect  no  per- 
son was  to  be  allowed,  without  first  taking  this  oath,  to 
practice  as  attorney  at  law,  or  to  act  as  priest,  deacon, 
minister,  clergyman,  etc.,  of  any  religious  persuasion. 
If  he  continued  without  taking  such  oath  after  the  sixty 
days  he  was  Hable,  on  conviction  thereof,  to  be  pun- 
ished by  a  fine  of  not  less  than  $500,  or  imprisonment 
of  not  less  than  six  months  in  the  county  jail,  or 
both,  at  the  discretion  of  the  court.  The  Rev.  Mr. 
Cummings,  a  priest  of  the  Catholic  Church  and  a  citi- 
zen of  Missouri,  was  indicted  and  convicted  in  the  Cir- 
cuit Court  of  Pike  County  for  continuing  his  work  as 
priest  without  taking  such  oath.  He  was  sentenced  to 
pay  a  fine  of  $500  and  to  be  committed  to  jail  until  the 
fine  and  the  costs  were  paid.  On  appeal  from  this  de- 
cision to  the  United  States  Supreme  Court,  the  ques- 
tion was  presented  whether  this  act  was  not  in  fact 
a  bill  of  attainder,  and  whether  it  was  not  obnoxious 
to  that  clause  of  the  Constitution  of  the  United  States 
which  prohibited  a  state  from  passing  such  bill  of  at- 
tainder or  ex  post  facto  law.  That  court  held  the  law 
ex  post  facto  in  its  nature  and  reversed  the  decision  of 
the  state  court.^ 

The  Constitution  provides  that  the  times,  places,  and 
manner  of  holding  the  elections  for  senators  and  rep- 
resentatives shall  be  prescribed  in  each  state  by  the 
legislature  thereof,  but  that  Congress  at  any  time  may 

'Cummings  v.  State  of  Missouri,  4  Wallace,  277;  ex  parte 
Garland,  4  Wallace,  ss3- 


CIVIL   WAR   AND    RECONSTRUCTION    PERIOD     69 

alter  such  regulations,  except  as  to  places  of  choosing 
the  senators.  No  clause  in  the  Constitution  created  so 
much  opposition  before  the  conventions  of  the  adopt- 
ing states.  The  conventions  in  North  Carolina,  South 
Carolina,  Virginia,  Massachusetts,  Rhode  Island,  New 
Hampshire,  and  New  York  strongly  remonstrated 
against  it,  but  the  people  were  assured  that  the  Na- 
tional Government  would  never  avail  itself  of  the  pro- 
vision. For  many  years,  however,  after  the  Civil  War 
and  until  well  down  in  the  eighties,  Federal  supervisors 
and  marshals  were  empowered  by  a  statute  of  Con- 
gress to  supervise  elections  in  every  state  where  mem- 
bers of  Congress  were  to  be  elected.  They  supervised 
the  polls  in  New  York  and  many  other  states  where 
assemblymen,  mayors,  state  and  city  judges  were  being 
elected.  They  often  examined  the  ballots  for  these 
state  officers,  claiming  that  they  were  authorized  to  be 
present  at  the  opening  of  all  the  boxes,  those  for  state 
and  local  officials  as  well  as  those  for  congressmen.  By 
the  provisions  of  the  statute  authorizing  this  provision 
the  United  States  District  Court  could  appoint  two  su- 
pervisors for  each  district,  and  the  United  States  mar- 
shal could  create  as  many  deputies  as  he  deemed  nec- 
essary to  aid  him  in  enforcing  the  law.  It  is  said  that 
15,000  supervisors  and  deputy  marshals  surrounded  the 
polls  at  the  general  election  of  1876,  and  many  state 
officers  were  punished  by  the  Federal  courts  for  alleged 
violations  of  both  the  national  statute  and  state  laws  at 
that  election. 

In  the  autumn  of  1874  an  election  for  members  of 
the  Legislature  took  place  in  the  State  of  Louisiana. 


70  FEDERAL    USURPATION 

On  the  face  of  the  returns  the  Conservatives,  or  what 
were  known  as  the  white  man's  party,  had  a  majority  of 
five  in  a  House  of  Representatives  of  one  hundred  and 
eleven  members.  The  government  of  Louisiana  had 
been  so  bad  for  many  years  under  the  control  of  the 
negro  party  that  even  the  better  class  of  negroes,  be- 
coming disgusted,  deserted  their  party  and  voted  for  the 
white  candidates.  The  Returning  Board,  controlled  by 
Governor  Kellogg  and  Marshal  Packard,  found  that  fifty- 
three  Republicans  and  only  fifty-three  of  what  were 
known  as  the  Conservatives  had  been  elected,  and  ren- 
dered no  decision  as  to  the  other  five  seats.  A  commit- 
tee appointed  by  the  United  States  House  of  Represent- 
atives to  examine  as  to  the  act  of  the  Returning  Board, 
and  as  to  the  honesty  of  the  Conservatives,  whose  mem- 
bers had  been  rejected  because  of  alleged  intimidation 
and  fraud,  consisting  of  Charles  Foster,  afterwards  Sec- 
retary of  the  Treasury,  William  Walter  Phelps,  and 
Clarkson  N,  Potter,  visited  New  Orleans  and  made 
their  report  to  the  effect  that  the  action  of  the  Return- 
ing Board  was  illegal,  and  that  in  substance  the  Con- 
servative majority  was  procured  by  honest  means. 
When,  however,  the  Legislature  came  to  assemble. 
General  de  Trobriand,  of  the  army  of  the  United  States, 
entered  the  House  of  Representatives  in  uniform,  his 
sword  at  his  side  and  escorted  by  his  staff.  Furnished 
with  an  order  by  Governor  Kellogg  to  clear  the  hall  of 
all  not  returned  as  legal  members  by  the  Returning 
Board,  he  removed  the  five  members  by  force,  leaving 
the  Republicans  in  control,  who  finally  organized  the 
House   and   proceeded   to    do   business.     The   acts  of 


CIVIL   WAR   AND    RECONSTRUCTION    PERIOD     71 

Charles  I  and  of  Cromwell,  in  removing  members  from 
the  House  of  Commons  by  violence,  ever  since  have 
been  landmarks  in  usurpation.  This  act  of  President 
Grant  and  of  his  general  ought  to  stand  side  by  side 
with  these  early  acts  of  tyranny. 

Property  of  considerable  value  was  abandoned  from 
time  to  time  by  citizens  of  the  Southern  States  during 
the  Civil  War,  and  was  taken  possession  of  and  sold 
by  the  National  Government  and  the  proceeds  depos- 
ited in  the  United  States  Treasury.  On  December  8, 
1863,  the  President,  pursuant  to  the  authority  of  Con- 
gress, made  a  proclamation  oflfering  pardon  to  citizens 
of  the  South  who  would  take  a  prescribed  oath  and 
return  to  their  allegiance  to  the  National  Government. 
As  an  inducement  to  bring  about  this  result  the  Presi- 
dent promised  restoration  of  all  their  rights  of  prop- 
erty except  as  to  slaves,  and  offered  to  return  to  the 
owners  of  abandoned  property  the  proceeds  thereof  in 
the  United  States  Treasury.  Thousands  of  Southern 
men  availed  themselves  of  this  proclamation,  and  after 
the  war  many  claims  for  the  proceeds  of  such  aban- 
doned property  were  filed  in  the  Court  of  Claims.  The 
fact  that  the  claimant  had  taken  the  oath  after  the 
proclamation,  had  availed  himself  of  the  conditions  of 
the  proclamation,  and  had  received  the  pardon  of  the 
President  was  regarded  as  sufficient  to  entitle  him  to 
prosecute  his  claim  before  the  court  without  other 
proof  of  his  loyalty.  On  July  12,  1870,  Congress 
passed,  as  a  rider  to  the  Appropriation  Bill,  a  law  pro- 
viding that  no  prior  pardon  of  the  President  should  be 
admissible  in  evidence  on  the  part  of  any  claimant  in 


72  FEDERAL    USURPATION 

the  Court  of  Claims  in  support  of  his  claim  for  the  pro- 
ceeds of  abandoned  property,  and  that  proof  of  his  loy- 
alty must  be  made  irrespective  of  the  effect  of  the 
proclamation  of  the  President  and  his  availing  himself 
thereof;  and  that  where  the  claim  had  been  dismissed 
and  the  claimant  took  an  appeal  therefrom,  that  the 
Appellate  Court,  when  it  appeared  that  proof  of  loyalty 
depended  alone  upon  such  pardon,  should  affirm  the 
judgment  of  the  Court  of  Claims.  This  statute  was  de- 
clared unconstitutional  as  an  infringement  of  the  right 
of  the  President  to  grant  such  pardon  and  as  destroying 
its  effect.^ 

During  all  the  period  between  1789,  when  the  first 
Congress  under  the  Constitution  convened,  and  1863 
the  United  States  Supreme  Court  had  declared  only  two 
statutes  unconstitutional.'*  It  is  true  that  in  two  other 
cases  during  that  period  the  court  had  held  that  duties 
imposed  upon  it  by  the  Congress  were  not  judicial  in 
their  nature  and  that  therefore  they  were  under  no  obli- 
gations to  perform  them.^  In  addition  to  the  unconsti- 
tutional acts  described  in  this  chapter  passed  in  the  war 
and  Reconstruction  days,  the  United  States  Supreme 
Court  declared  four  other  acts  of  that  period  uncon- 
stitutional.*    Between  the  years   1863  and   1870  eleven 

>  United  States  v.  Klein,  80  U.  S.,  129-47. 

*  Marbury  v.  Madison,  i  Cranch,  137  (1803);  Dred  Scott  v. 
Sanford,  19  Howard,  393  (1857). 

'  Heybum's  Case,  2  Dall.,  409  (1792);  United  States  v. 
Ferreira,  13  Howard,  40. 

'Collector  v.  Day,  8  Wallace,  113;  Hepburn  v.  Griswold, 
8  Wallace,  603;  United  States  v.  Reese,  92  U.  S.,  214;  James 
V.  Bowman,  190  U.  S.,  127. 


CIVIL   WAR   AND   RECONSTRUCTION    PERIOD     73 

statutes  were  passed  by  Congress  which  were  declared 
unconstitutional  by  the  Supreme  Court  of  the  United 
States.  During  the  same  period  the  examination  by 
the  Supreme  Court  of  several  Congressional  statutes 
was  prevented  by  acts  of  Congress  repealing  the  law 
allowing  appeals  to  that  court.  So  that  during  seventy- 
four  years  of  the  history  of  the  country  between  1789 
and  1863  the  United  States  Supreme  Court  declared  two 
Congressional  acts  unconstitutional;  while  during  the 
period  from  1863  to  1870,  a  period  of  only  seven  years, 
eleven  statutes  were  declared  unconstitutional  and  many 
more  would  have  been  declared  unconstitutional  had 
the  court  ever  had  the  opportunity  to  pass  upon  them. 
No  facts  could  more  strongly  demonstrate  that  this  era 
of  the  latter  part  of  the  Civil  War  and  the  Reconstruc- 
tion Period  was  an  era  of  usurpation  than  the  decision 
of  the  highest  court  that  so  many  statutes  passed  in 
that  period  were  void  as  usurping  the  rights  of  the  sev- 
eral states. 

The  importance  of  the  facts  which  we  have  given  are 
found  in  their  violence.  We,  perhaps,  have  no  reason 
for  fear  in  this  country  that  our  liberties  will  be  violently 
wrested  from  us.  The  danger  is  that  they  will  be 
secretly  undermined  and  gradually  destroyed.  The 
usurping  acts  of  the  war  were  white  compared  with  the 
cold  calculating  despotism  of  Reconstruction  days.  Mr. 
Rhodes  quotes  Bishop  Galloway,  of  Mississippi,  as  say- 
ing in  1903:^  "Those  pitiless  years  of  reconstruction! 
Worse  than  the  calamities  of  war  were  the  *  desolating 
furies  of  peace.'  No  proud  people  ever  suffered  such 
'  History  of  the  United  States,  vol.  vii,  p.  141. 


74  FEDERAL   USURPATION 

indignities  or  endured  such  humiliation  and  degra- 
dation." 

After  the  Battle  of  the  Boyne,  for  more  than  a  cen- 
tury England  kept  the  Irish  Catholics  reduced  to  the 
condition  of  helots,  attempting  to  extirpate  their  re- 
ligion, excluding  them  from  Parliament,  from  municipal 
office,  from  legislatures,  and  from  the  jury  box.  The 
prevailing  party  of  reconstruction  sought  to  accomplish 
the  same  results,  not  because  they  feared  the  South  as 
England  feared  Catholicism,  but  for  the  selfish  and 
wicked  purpose  of  political  supremacy.  Senator  Howe, 
speaking  in  the  United  States  Senate  in  those  days  in 
behalf  of  the  reconstruction  policy  of  his  party,  said: 
"  Do  senators  comprehend  what  consequences  would 
result  necessarily  from  restoring  the  functions  of  those 
states !  It  will  add  fifty  eight  members  to  the  House 
of  Representatives,  more  than  one  fourth  of  its  present 
membership.  It  will  add  twenty  two  members  to  the 
Senate ;  more  than  one  half  of  the  present  membership. 
The  Constitution  designed  the  legislature  to  be  inde- 
pendent of  the  Executive.  But  what  independence  has 
that  legislature  in  which  the  executive  at  his  pleasure 
may  pour  so  many  votes !  "  ^ 

When  General  Terry,  in  command  of  the  department 
which  included  the  State  of  Georgia,  ousted  twenty-four 
Democrats  from  the  Legislature  and  by  his  own  ap- 
pointment filled  their  places  by  Republicans,  at  the  same 
time  restoring  a  number  of  negroes  who  had  been  ex- 
pelled, Carl  Schurz  declared  in  the  United  States  Senate 
that  these  acts  of  General  Terry's  were  usurpations. 
» Cox,  Three  Decades  of  Federal  Legislation,  p.  352. 


CIVIL   WAR   AND    RECONSTRUCTION    PERIOD     75 

Senator  Henry  Wilson,  of  Massachusetts,  replied: 
"  Law  or  no  law,  we  want  to  keep  this  state  govern- 
ment in  power."  In  the  House  of  Representatives 
Thaddeus  Stevens,  with  a  malignity  as  bitter  as  charac- 
terized the  leaders  of  the  French  Revolution;  and  that 
unscrupulous  demagogue,  Benjamin  F.  Butler,  fired 
their  followers  with  hatred  and  fanaticism  to  enact  these 
pitiless  and  unconstitutional  laws. 

War  is  never  done.  It  leaves  its  baleful  seed  for 
generations.  We  are  suffering  to-day  from  these  usur- 
pations. The  exercise  of  such  powers  accustomed  our 
people  to  the  sight  of  tyranny,  and  as  a  partial  result 
of  those  deeds  our  Government  is  being  transformed. 
Already  the  Constitution  by  construction  has  been 
stretched  to  cover  a  multitude  of  conditions  never  antici- 
pated by  its  makers;  and  we  are  face  to  face  with  the 
problem  whether  ours  is  a  government  under  a  written 
constitution  and  the  laws  made  pursuant  thereto,  or 
whether  it  is  a  government  by  ambitious  and  usurping 
men. 


Ill 

EXECUTIVE   USURPATION 


"The  only  liberty  that  humanity  can  tolerate  is  the  liberty 
that  is  tinder  the  law." 

E.  J.  Phelps. 


"Reasonings  from  the  excesses  of  liberty  or  the  neglect  of 
the  people,  in  favor  of  arbitrary  government,  involve  the  tacit 
fallacy  that  perfect  or  at  least  superior  wisdom  and  virtue  will 
be  found  in  such  government." 

Hallam. 


"It  is  necessary  to  create  in  the  multitude,  and  through  them 
to  force  upon  the  leading  ambitious  men,  that  rare  and  difficult 
sentiment  which  we  may  term  a  constitutional  morality  *  *  * 
a  paramount  reverence  for  the  forms  of  the  constitution,  en- 
forcing obedience  to  the  authorities  acting  under  and  within 
those  forms,  yet  combined  with  the  habit  of  open  speech,  of 
action  subject  only  to  definite  legal  control,  and  unrestrained 
censure  of  those  very  authorities  as  to  all  their  public  acts." 

Grote. 


"Despotism  often  promises  to  make  amends  for  a  thousand 
ills;  it  supports  the  right,  it  protects  the  oppressed,  and  it  main- 
tains public  order.  The  nation  is  lulled  by  the  temporary  pros- 
perity which  accrues  to  it ;  until  it  is  roused  to  a  sense  of  its  own 
misery." 

De  Tocqueville. 


CHAPTER    III 


EXECUTIVE   USURPATION 


President  Roosevelt,  in  his  message  of  December, 
1906,  in  justification  of  his  criticism  of  Federal  judges, 
said :  "  It  is  the  only  practicable  and  available  instrument 
in  the  hands  of  free  people  to  keep  such  judges  alive  to 
the  reasonable  demands  of  those  they  serve."  These 
words  might  be  invoked  as  a  justification  of  what  may 
appear,  in  this  and  the  next  chapter,  to  be  a  severe  criti- 
cism of  his  executive  action,  but  it  would  seem  that  the 
only  limitations  upon  criticism,  even  of  one  holding  the 
exalted  position  of  head  of  the  nation,  should  be  those 
which  justice,  impartiality,  and  honest  motives  neces- 
sarily impose. 

Before  discussing  the  acts  of  the  President  which 
exceed  his  authority,  let  us  observe  for  a  moment  the 
vast  power  which  he  legitimately  exercises.  All  of  the 
power  necessary  to  execute  the  laws  is  conferred  upon 
the  President.  It  is  true  that  there  is  an  enumeration 
of  executive  powers,  but  in  view  of  a  recent  decision  of 
the  United  States  Supreme  Court,^  upon  the  like  scope 
of  judicial  power  in  the  Constitution,  we  might  well  as- 
sume that  the  powers  enumerated  as  executive  powers 
are  not  exclusive  of  such  other  powers  as  are  necessary 
>  Kansas  v.  Colorado,  206  U.  S.,  83. 
79 


8o  FEDERAL    USURPATION 

to  the  execution  of  the  laws.  Besides  ambassadors  and 
members  connected  with  the  diplomatic  and  consular 
service,  the  President  now  nominates,  subject  to  con- 
firmation by  the  Senate,  about  8,000  officials.  On 
June  30,  1905,  there  were  upward  of  300,000  positions 
in  the  executive  civil  service,  excluding  those  of  the 
diplomatic  and  consular  service.  At  that  time  about 
100,000  of  them  were  not  subject  to  the  rules  requiring 
the  appointments  to  be  made  from  competitive  exami- 
nations. Under  the  Federal  Rate  Bill  the  Interstate 
Commerce  Commission,  which  is  appointed  by  the 
President,  is  given  power  to  establish  the  freight  rates 
of  the  commerce  of  over  80,000,000  of  people,  on  220,- 
000  miles  of  railway.  What  greater  power  could  an 
ambitious  President  wish  than  the  appointment  and 
control  of  a  commission  which  fixes  the  rates  of  freight 
and  of  passenger  traffic  on  every  interstate  railway  in 
the  United  States? 

Unless  the  other  departments  of  government,  whose 
office  it  is  to  check  executive  usurpation,  are  backed  by 
an  effective  public  opinion,  the  executive  has  always  the 
means  of  setting  them  aside  or  compelling  them  to  sub- 
servience. The  courts  will  not  interfere  with  the  Presi- 
dent or  the  other  executive  officers  of  the  government 
in  the  execution  of  their  ordinary  official  duties,  even 
when  those  duties  require  an  interpretation  of  the  law.^ 

The  men  who  framed  the  Constitution  and  the  state 
delegates  who  adopted  it  were  disgusted  with  the  feeble- 
ness which  had  been  shown  under  the  Confederation, 

•  Miller  v.  Raum,  135  U.  S.,  200;  Oil  Company  v.  Hitchcock, 
190  U.  S.,  316. 


EXECUTIVE    USURPATION  8l 

and  they  went  to  the  other  extreme  in  making  the 
President  the 'most  powerful  ruler,  as  it  has*  turned  out, 
in  the  world  to-day.  They  were  undoubtedly  influenced 
by  the  fact  that  everyone  looked  to  George  Washing- 
ton as  the  first  President,  and  they  little  foresaw  the  ter- 
rible power  which  would  be  centered  in  the  President 
when  the  United  States  would  consist  of  forty-six  states, 
extending  from  the  Atlantic  to  the  Pacific  and  embrac- 
ing 3,500,000  square  miles  of  territory,  besides  many 
dependent  colonies.  "  The  President,"  says  Mr.  Bryce, 
"  enjoys  more  authority,  if  less  dignity,  than  a  Euro- 
pean king."  ^  "  Within  the  sphere  of  national  admin- 
istration," says  Mr.  Fairlie,^  "  his "  (the  President's) 
"  effective  personal  authority  is  of  more  value  than  that 
of  most  constitutional  monarchs  of  Europe  or  even  of 
their  prime  ministers." 

The  French  President  is  chosen  for  seven  years  by 
the  national  assembly,  consisting  of  the  Senate  and 
Chamber  of  Deputies.  He  is  given  the  power  to  exe- 
cute the  laws  and  the  appointment  of  the  officers  of  the 
government ;  but  when  the  Ministry  fails  to  receive  the 
support  of  the  Chamber  he  simply  calls  upon  some 
member  of  the  opposition  to  form  a  Ministry,  and  the 
Chamber  of  Deputies  rules  France  through  its  ministers 
as  the  House  of  Commons  rules  England.  Casimir- 
Perier  resigned  his  office  as  President  of  the  Republic 
of  France  within  a  few  months  after  his  election,  saying 
that  the  President  of  the  Republic  exercised  so  little  real 
power  as  to  be  entirely  overbalanced  by  the  omnipotence 

'  American  Commonwealth,  p.  62. 
2  National  Administration  of  the  United  States,  p.  41. 
7 


82  FEDERAL    USURPATION 

of  the  French  Chamber  of  Deputies.  The  power  of  the 
President  of  the  French  Republic  has  been  steadily  de- 
clining, while  the  power  of  the  Chamber  of  Deputies  has 
been  as  steadily  growing.  The  President  is  not  responsi- 
ble for  his  official  conduct,  his  acts  being  countersigned 
by  one  of  his  ministers.  He  usually  does  not  even  attend 
cabinet  consultations  in  which  the  policies  of  govern- 
ment are  discussed.  Sir  Henry  Maine  described  the 
French  President  as  follows:  "The  old  kings  of  France 
reigned  and  governed.  The  constitutional  king,  accord- 
ing to  M.  Thiers,  reigns  but  does  not  govern.  The 
President  of  the  United  States  governs  but  does  not 
reign.  It  has  been  reserved  for  the  President  of  the 
French  Republic  neither  to  reign  nor  to  govern."  * 

The  King  of  Italy  appoints  the  ministers  when  the 
ministry  ceases  to  have  the  confidence  of  the  popular 
branch  of  the  legislature.  His  sanction  is  necessary  to 
the  validity  of  a  law  passed  by  the  legislature,  but  he 
never  refuses  that  sanction.  Even  the  treaties  which  he 
makes,  especially  treaties  of  commerce,  require  the 
assent  of  both  chambers.  No  act  of  the  legislature  be- 
comes valid  unless  countersigned  by  a  minister,  and  in 
Italy,  as  in  France,  the  popular  branch  of  the  legisla- 
ture actually  carries  on  the  government,  the  king  him- 
self being  subject  in  most  respects  to  their  control. 

The  German  Emperor,  aside  from  his  position  as 
king  of  Prussia,  does  not  possess  powers  so  extensive 
as  the  President  of  the  United  States.  The  laws  enacted 
by  the  Bundesrath  and  the  Reichstag  are  enforced  in 
the  several  states  of  the  empire  by  local  officers,  and 
>  Popular  Government,  Lowell,  p.  251. 


EXECUTIVE    USURPATION  •  83 

the  German  Chancellor  rather  than  the  Emperor  has 
general  supervision  over  their  enforcement.  The  direct 
appointments  to  office  by  the  German  Emperor  and  his 
Chancellor  are  thus  fewer  than  those  of  our  executive 
department.  Aside  from  his  direction  of  the  army  and 
navy  and  the  charge  of  foreign  affairs  as  Emperor  of 
Germany,  he  acts  as  the  delegate  of  the  confederated 
government  in  about  all  other  matters  under  the  direc- 
tion of  the  Bundesrath.  He  has  no  veto.  The  German 
Emperor  appoints  and  dismisses  his  ministers  and  they 
are  accountable  to  him,  not  to  the  legislative  power, 
just  as  the  members  of  the  cabinet  are  accountable  to 
the  President.  They  are  the  ministers  of  the  king  as 
the  cabinet  are  the  ministers  of  the  President,  and  not 
at  all,  as  in  England,  France,  and  Italy,  the  ministers 
of  the  parliamentary  majority. 

In  Switzerland,  the  President  of  the  Swiss  Confed- 
eration is  little  known  to  the  people  cmd  his  powers  are 
very  limited.  The  federal  laws  are  carried  out  gener- 
ally by  the  authority  of  each  canton,  and  even  the  army 
is  under  the  management  of  the  cantons,  the  central 
government,  however,  making  the  regulations,  appoint- 
ing the  superior  officers,  and  having  the  command  in  the 
field. 

Kings  have  ever  been  the  bugaboo  of  our  American 
people;  but  the  President  of  the  United  States  to-day, 
in  the  legitimate  exercise  of  his  authority,  exercises  a 
greater  power  than  any  constitutional  sovereign  on  the 
face  of  the  earth,  his  power  in  Europe  being  exceeded 
only  by  that  of  the  czar  or  the  sultan.  All  the  bulwarks 
of  liberty  were  reared  not  against  the  English  Parlia- 


84  FEDERAL    USURPATION 

ment  but  against  the  English  king.  The  same  is  true 
of  all  modern  parliamentary  governments.  "  Do  not 
make  me  a  king,"  said  Cromwell,  "  for  then  my  hands 
will  be  tied  by  all  the  laws  which  define  the  duties  of 
that  office,  but  make  me  director  of  the  commonwealth 
and  I  can  do  what  I  please;  no  statute  restraining  and 
limiting  the  royal  prerogative  will  then  apply  to  me." 

The  President  of  the  United  States  may  approach  the 
execution  of  his  powerful  office  in  the  spirit  of  being  a 
simple  instrument  of  Providence,  but  if  he  is  not  en- 
dowed with  the  clearest  head  and  most  eminent  com- 
mon sense  he  will  become  so  intoxicated  by  power  as 
to  imagine  that  he  has  become  Providence  itself.  In- 
asmuch as  all  of  his  duties  are  not  defined,  and  the  ex- 
ercise of  those  defined  is  discretionary,  he  can  commit 
innumerable  violations  against  the  Constitution,  and  com- 
mit them  in  such  a  manner  as  to  deprive  the  United 
States  Supreme  Court  of  all  jurisdiction  over  the  matter. 
There  is  no  remedy  but  impeachment.  For  these  rea- 
sons usurpations  of  power  by  the  President  are  much 
more  dangerous  than  by  the  Legislature.  The  command 
to  the  Roman  dictator  was  to  take  care  that  the  state 
received  no  harm;  such  inciefinite  commands  and  discre- 
tionary duties  open  endless  avenues  for  the  advancement 
of  absolutism.  But,  say  those  who  exalt  the  power  of 
the  President  and  contend  that  there  is  no  danger  to 
the  people  from  his  usurpations,  he  is  restrained  by  the 
people,  he  is  "  the  servant  of  eighty  million  sovereigns, 
whose  soul-inspiring  purpose  is  to  serve  his  fellow-citi- 
zens." 

Let  us  see  if  this  fact  is  a  safeguard  against  usur- 


EXECUTIVE   USURPATION  85 

pation.  Louis  Napoleon  was  elected  President  of  the 
French  Republic  in  December,  1848,  by  a  large  majority. 
In  1850  a  law  was  passed  restricting  the  suffrage  and  dis- 
franchising about  3,000,000  voters.  This  law,  as  I 
remember,  was  passed  with  his  tacit  consent,  but  the 
wily  President  wished  to  be  emperor.  In  order  to  be 
emperor  he  must  appear  as  the  champion  of  popular 
rights,  so  in  185 1  he  called  upon  the  Chamber  to  repeal 
the  disfranchisement  law  of  1850,  and  to  restore  the 
franchise  to  the  3,000,000  voters.  They  refused.  Within 
about  a  month  the  Co%ip  d'Etat  of  December  2d  took 
place,  the  chief  statesmen  and  generals  of  France  were 
arrested  in  their  beds,  dragged  off  to  prison,  and 
his  usurpation  was  approved  by  8,000,000  electors.  He 
was  confirmed  as  emperor  in  November,  1852,  by  an 
overwhelming  vote,  and  even  so  late  as  a  few  weeks 
before  the  Franco-German  war  his  imperial  rule  was 
ratified  by  a  large  majority.  During  the  whole  of  his 
reign  the  members  of  the  Chamber  of  Deputies  were 
elected  by  universal  suffrage,  and  yet  the  rule  of  Louis 
Napoleon  was  a  despotism. 

"  A  bold  President,"  says  Mr.  Bryce,  "  who  knew 
himself  to  be  supported  by  a  majority  in  the  country, 
might  be  tempted  to  override  the  law  and  deprive  the 
minority  of  the  protection  which  the  law  affords  it."  ^ 
"  The  gloss  of  zeal  for  the  public  service,"  says  Edward 
Livingston,  "  is  always  spread  over  acts  of  oppression, 
and  the  people  are  sometimes  made  to  consider  that  as  a 
brilliant  exertion  of  energy  in  their  favor  which,  when 
viewed  in  its  true  light,  would  be  found  a  fatal  blow  to 
>  Bryce,  The  American  Commonwealth,  vol.  i,  p.  64. 


86  FEDERAL    USURPATION 

their  rights.  In  no  government  is  this  eflfect  so  easily 
produced  as  in  a  free  repubHc;  party  spirit,  inseparable 
from  its  existence,  aids  the  illusion,  and  a  popular  leader 
is  allowed  in  many  instances  impunity,  and  sometimes 
rewarded  with  applause,  for  acts  which  would  make  a 
tyrant  tremble  on  his  throne."  ^  The  people  who  elect 
the  President  can  make  and  unmake  constitutions,  and 
it  is  natural  for  a  strenuous,  ambitious  President,  when 
sustained  by  the  people,  to  feel  that  he  is  endowed  with 
powers  beyond  the  constitution. 

Article  XXX  of  the  Massachusetts  Constitution  of 
1780  runs  thus :  "  In  the  government  of  this  common- 
wealth the  legislative  department  shall  never  exercise  the 
executive  and  judicial  power, or  either  of  them  ;  the  execu- 
tive shall  never  exercise  the  legislative  and  judicial  power, 
or  either  of  them ;  the  judicial  shall  never  exercise  the 
legislative  and  executive  power,  or  either  of  them,  to  the 
end  it  may  be  a  government  of  laws  and  not  of  men." 
The  same  principle  of  a  separation  of  these  three  depart- 
ments is  emphatically  asserted  in  the  constitutions  made 
during  the  Revolutionary  War  in  Maryland.  North  Caro- 
lina, New  Hampshire,  Virginia,  and  Georgia.  The  first 
resolution  concerning  the  Constitution  of  the  United 
States  passed  by  the  Constitutional  Convention  stated : 
"  That  a  national  government  ought  to  be  established, 
consisting  of  a  supreme  legislative,  executive,  and  judi- 
ciary." Six  states  voted  for  the  resolution,  Connecticut 
voting  against  it,  and  New  York  divided.- 

Thomas  Jefferson,  in  a  letter  to  William  C.  Jarvis, 

*  Bryce,  The  American  Commonwealth,  vol.  i,  p.  63,  note. 

*  Elliot's  Deb.,  vol.  v,  p.  134. 


EXECUTIVE    USURPATION  87 

written  with  reference  to  the  stability  of  our  Republic 
many  years  after  he  had  retired  to  private  life,  said : 
"If  the  three  powers  of  our  government  maintain  their 
mutual  independence  of  each  other  it  may  last  long,  but 
not  so  if  either  can  assume  the  authority  of  the  other." 
Madison  said:  "  If  it  be  a  fundamental  principle  of  free 
government  that  the  legislative,  executive,  and  judiciary 
powers  should  be  separately  exercised,  it  is  equally  so 
that  they  be  independently  exercised."  ^  Montesquieu 
wrote :  "  There  is  no  liberty  if  the  judiciary  power  be 
not  separated  from  the  legislative  and  executive  powers." 
And  Chief  Justice  Chase,  speaking  for  the  United  States 
Supreme  Court,  says :  "  It  is  the  intention  of  the  Consti- 
tution that  each  of  the  great  coordinate  departments  of 
the  government,  the  legislative,  the  executive,  and  the 
judicial,  shall  be,  in  its  sphere,  independent  of  the 
others."  ^ 

In  a  speech  made  at  Harrisburg  on  October  4, 
1906,  the  President  of  the  United  States  said :  "  In  some 
cases  this  governmental  action  must  be  exercised  by  the 
several  states  individually.  In  yet  others  it  has  become 
increasingly  evident  that  no  efficient  state  action  is  pos- 
sible, and  that  we  need,  through  executive  action,  through 
legislation,  and  through  judicial  interpretation  and  con- 
struction of  law,  to  increase  the  power  of  the  Federal 
government.  If  ive  fail  thus  to  increase  it,  we  show  our 
impotence.''  This  statement  is  but  a  reiteration  of  simi- 
lar statements  made  again  and  again  by  the  President. 
He  has  made  no  secret  of  his  desire  to  increase  the  powers 

>  Elliot's  Deb.,  vol.  v,  p.  337. 

^  United  States  v.  Klein,  80  U.  S.,  129,  147  of  opinion. 


88  FEDERAL   USURPATION 

of  the  central  government  through  "  judicial  interpre- 
tation and  construction  of  law." 

Mr.  Elihu  Root,  as  the  Secretary  of  State,  holds  the 
department  first  in  importance  in  the  national  govern- 
ment and  the  one  in  which  the  President  of  the  United 
States  has  always  taken  greater  part  than  any  other. 
He  also  occupied  the  position  of  Secretary  of  War  under 
President  Roosevelt  during  his  first  term  of  office.  He 
and  the  President  are  warm  personal  friends.  Mr.  Root 
has  been  regarded  as  the  nearest  to  the  President  of  any 
of  the  members  of  his  cabinet.  On  December  12,  1906, 
Mr.  Root,  speaking  in  New  York,  after  noting  "  the 
gradual  passing  of  control  "  into  the  hands  of  the  na- 
tional government  and  summarizing  "  other  projects 
tending  more  and  more  to  obliteration  of  state  lines," 
declared :  "  It  may  be  that  such  control  would  better  be 
exercised  in  particular  instances  by  the  government  of 
the  States,  but  the  people  will  have  the  control  they  need 
either  from  the  States  or  from  the  national  government, 
and  if  the  State  fail  to  furnish  it  in  due  measure,  sooner 
or  later  constructiotis  of  the  Constitution  will  be  found 
to  vest  the  power  where  it  will  be  exercised — in  the  na- 
tional government."  Now  what  condition  of  affairs  have 
we  when  the  President  expresses  his  opinion  that  we  are 
impotent  if  we  do  not  increase  the  power  of  the  na- 
tional government  through  executive  action,  through 
legislation,  and  "  through  judicial  interpretation  and 
construction  of  law,"  and  the  Secretan,'  of  State,  pre- 
sumably speaking  for  the  administration  which  he  rep- 
resented, declares  that  if  the  states  fail  to  furnish  this 
power  in  due  measure,  "  sooner  or  later  constructions  of 


EXECUTIVE    USURPATION  89 

the  Constitution  will  be  found  to  vest  the  power  where 
it  will  be  exercised — in  the  national  government." 

The  President  appoints  the  judges  of  the  Supreme 
Court  of  the  United  States  and  of  the  District  and  Cir- 
cuit courts.  During  his  term  of  office  as  President  he 
has  appointed  three  of  the  nine  Associate  Justices  of  the 
Supreme  Court,  seventeen  of  the  twenty-nine  United 
States  Circuit  Court  Judges,  and  forty-five  of  the  eighty- 
two  Judges  of  the  United  States  District  Court.  Mr. 
Bryce  says:  "  Yet  even  the  Federal  Judiciary  is  not  se- 
cure from  the  attacks  of  the  two  other  powers,  if  com- 
bined. For  the  legislature  may  by  statute  increase  the 
number  of  Federal  justices,  increase  it  to  any  extent, 
since  the  Constitution  leaves  the  number  undetermined, 
and  the  President  may  appoint  persons  whom  he  knows 
to  be  actuated  by  a  particular  political  bias,  perhaps  even 
prepared  to  decide  specific  questions  in  a  particular 
sense."  ^  Professor  Dicey,  speaking  of  our  Federal  Ju- 
diciary, says :  "  Judges,  further,  must  be  appointed  by 
some  authority  which  is  not  judicial,  and  where  decisions 
of  a  Court  control  the  action  of  government  there  exists 
an  irresistible  temptation  to  appoint  magistrates  who 
agree  (honestly,  it  may  be)  with  the  views  of  the  exe- 
cutive." ^  Daniel  Webster,  at  the  Whig  Convention  at 
Worcester,  Mass.,  in  1832,  speaking  of  Jackson  and 
his  attitude  toward  the  United  States  Supreme  Court, 
said :  "  The  judicial  power  cannot  stand  for  a  long  time 
against  the  executive  power.  The  judges,  it  is  true,  hold 
their  places  by  an  independent  tenure,  but  they  are  mor- 

>  Bryce,  The  American  Commonwealth,  vol.  i,  p.  298. 
2  Dicey,  The  Law  of  the  Constitution,  p.  1 74. 


90  FEDERAL    USURPATION 

tal,  and  the  vacancies  will  be  filled  by  judges  agreeing 
with  the  President  in  his  constitutional  opinions." 

The  President  has  taken  a  most  solemn  oath  to 
"  preserve,  protect,  and  defend  the  Constitution,"  and 
having  taken  that  oath  he  boldly  declares  that  we  need 
to  increase  the  power  of  the  government  through  "  ju- 
dicial interpretation  and  construction,"  and  his  Secre- 
tary of  State  tells  us  that  it  will  be  increased  by  such 
"  constructions."  A  deliberate  attempt  on  the  part  of 
the  President  or  the  Supreme  Court  to  amend  the  Con- 
stitution by  construction,  when  the  Constitution  dis- 
tinctly provides  the  only  legal  method  of  amendment, 
is  an  attempt  to  take  away  the  sovereignty  of  the  peo- 
ple and  to  vest  the  power  of  amendment  in  a  depart- 
ment of  the  government  where  it  does  not  belong,  and 
is  nothing  short  of  a  flagrant  usurpation  of  power. 

Is  there  doubt  that  the  President  desires  to  accom- 
plish this  through  the  United  States  Supreme  Court? 
If  there  is,  the  doubt  can  be  removed.  The  President, 
in  1906,  said :  "  I  cannot  do  better  than  base  my  theory 
of  governmental  action  upon  the  words  and  deeds  of 
one  of  Pennsylvania's  greatest  sons,  Justice  James  Wil- 
son. He  developed,  even  before  Marshall,  the  doctrine 
(absolutely  essential,  not  merely  to  the  efficiency,  but  to 
the  existence  of  this  nation)  that  an  inherent  power 
rested  in  the  nation  outside  of  the  enumerated  powers 
conferred  upon  it  by  the  Constitution,  in  all  cases  where 
the  object  involved  was  beyond  the  power  of  the  sev- 
eral states  and  was  a  power  ordinarily  exercised  by 
sovereign  nations.  Certain  judicial  decisions  have  done 
just  what  Wilson  feared :  they  have,  as  a  matter  of  fact, 


EXECUTIVE    USURPATION  9I 

left  vacancies,  left  blanks  between  the  limits  of  actual 
national  jurisdiction  over  the  control  of  the  great  busi- 
ness corporations.  Many  legislative  actions  and  many 
judicial  decisions,  which  I  am  confident  time  will  show 
to  have  been  erroneous  and  a  damage  to  the  country, 
would  have  been  avoided  if  our  legislators  and  jurists 
had  approached  the  matter  of  enacting  and  construing 
the  laws  of  the  land  in  the  spirit  of  your  great  Pennsyl- 
vanian,  Justice  Wilson — in  the  spirit  of  Marshall  and 
of  Washington.  Such  decisions  put  us  at  a  great  dis- 
advantage in  the  battle  for  industrial  order  as  against 
the  present  industrial  chaos."  ^ 

The  President  here  declares  that  in  all  cases  where 
the  object  involved  was  beyond  the  power  of  the  sev- 
eral states  and  was  a  power  ordinarily  exercised  by  a 
sovereign  nation,  the  United  States  Supreme  Court 
ought  to  hold  that  it  is  an  inherent  power  vested  in 
the  nation,  outside  of  the  enumerated  powers  conferred 
upon  it  by  the  constitution.  This  Court  has  ever  held 
that  there  was  no  such  inherent  power  in  the  national 
government  and  their  latest  decision  reiterates  that 
holding.^  Notwithstanding  this,  the  President,  the 
head  of  a  separate  and  distinct  department  of  the  gov- 
ernment, of  which  the  Judges  of  the  United  States  Su- 
preme Court  should  be  absolutely  independent,  declares 
their  holding  to  have  been  erroneous,  and  a  damage  to 

>  Article  written  by  Lucius  H.  Alexander,  of  Philadelphia,  on 
James  Wilson  and  the  Wilson  Doctrine.  North  American  Re- 
view of  November  16,  1906,  pp.  984,  985. 

2  Kansas  v.  Colorado,  206  U.  S.,  89;  New  York  R.R.  Co.  v. 
Bristol,  151  U.  S.,  556;  Passenger  Cases,  7  Howard,  470. 


92  FEDERAL    USURPATION 

the  country,  and  does  not  seem  to  see  the  impropriety 
of  such  a  statement. 

But  the  President  has  not  stopped  even  there  in  his 
criticisms  of  the  Federal  Judges.  In  his  annual  mes- 
sage to  Congress  of  December,  1906,  speaking  of  a 
recent  decision  of  a  United  States  District  Court  judge, 
he  said :  "  I  have  specifically  in  view  a  recent  decision 
by  a  District  Judge,  leaving  railway  employees  without 
a  remedy  for  violations  of  a  certain  so-called  labor 
statute.  It  seems  an  absurdity  to  permit  a  single  dis- 
trict judge  against  what  may  be  the  judgment  of  an 
immense  majority  of  his  colleagues  on  the  bench  to  de- 
clare a  law  solemnly  enacted  by  the  Congress  to  be 
unconstitutional."  The  Judge  referred  to  was  Judge 
Walter  Evans,  and  the  decision  referred  to  was  in  the 
case  of  The  Order  of  Railway  Telegraphers  against  the 
Louisville  &  Nashville  Railroad  Company.  Judge  Ev- 
ans decided  in  favor  of  the  railroad  on  the  ground  that 
Section  10  of  the  Act  of  Congress  of  June  i,  1896,  on 
which  the  suit  was  brought,  was  void.  The  President 
referring  to  this  decision  made  the  above  remarks,  in 
which  he  tells  us  that  an  "  immense  majority  "  of  the 
colleagues  of  Judge  Evans  may  not  agree  with  him  as 
to  the  decision  in  that  case. 

Now  what  is  the  natural  effect  of  such  criticism  on 
the  part  of  the  President  of  the  United  States  of  Dis- 
trict Court  judges?  Those  judges  are  ambitious  for 
advancement.  The  President  is  able  to  appoint  them  to 
vacancies  occurring  in  the  Circuit  Court,  or  even  to 
vacancies  which  may  occur  upon  the  United  States  Su- 
preme Court.    Those  District  Court  judges  are  in  close 


EXECUTIVE    USURPATION  93 

relation  with  his  administration.  He  has  appointed 
many  of  them  to  the  position.  Can  there  be  any  doubt 
that  the  criticisms  of  the  President  who  can  advance 
them,  made  in  a  message  to  Congress,  read  by  all  the 
people,  and  the  fear  of  such  criticisms  on  their  own  part, 
will  affect  their  independence?  The  Representatives  in 
Congress  are,  however,  seeking  to  clothe  the  President 
with  the  dangerous  power  of  removing  Circuit  and  Dis- 
trict Judges  without  formulating  charges,  without  a 
hearing,  and  whenever  in  his  judgment  the  public  wel- 
fare will  be  promoted.  In  January,  1907,  Mr.  De  Ar- 
mond  introduced  such  a  bill  in  the  House  of  Repre- 
sentatives.^ The  President  has  invoked  James  Wilson 
as  authority  for  his  construction  of  the  Constitution,  yet 

•IN   THE   HOUSE   OP   REPRESENTATIVES. 

January  14,   1907. 

Mr.  De  Armond  introduced  the  following  bill;  which  was  re- 
ferred to  the  Committee  on  the  Judiciary  and  ordered  to 
be  printed. 

A    BILL 

To  make  additional  provision  for  the  retirement  of  judges. 

1  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 

2  the  United  States  of  America  in  Congress  assembled.     That 

3  whenever,  in  his  judgment,  the  public  welfare  will  be  pro- 

4  mo  ted  by  the  retirement  of  any  judge  of  the  United  States 

5  the  President  shall,  by  and  with  the  advice  and  consent  of 

6  the  Senate,  nominate  and  appoint  a  suitable  person  pos- 

7  sessing  the  qualifications  required  by  law  to  the  office  to 

8  be  vacated  by  such  retirement,  and  thereupon  and  thereby 

9  the  incumbent  shall  be  retired  and  the  judge  newly  ap- 

10  pointed  shall  enter  upon  the  duties  of  and  hold  the  office, 

11  agreeably  to  the  provisions  and  requirements  of  the  law 

12  and  subject  to  be  retired  as  herein  or  otherwise  provided. 

13  The  reasons  for  retirements  hereunder  shall  be  stated  in 

14  making  nominations. 


94  FEDERAL    USURPATION 

James  Wilson,  in  the  Pennsylvania  Convention  for  the 
adoption  of  the  Constitution,  said :  "  I  believe  that  pub- 
lic happiness,  personal  liberty,  and  private  property  de- 
pend essentially  upon  the  able  and  upright  determina- 
tions of  independent  judges."  Chief  Justice  Marshall,  in 
the  Virginia  Convention,  in  1829,  well  said:  "The  ju- 
diciary department  comes  home  in  its  effects  to  every 
man's  fireside ;  it  passes  on  his  property,  his  reputation, 
his  life,  his  all.  Is  it  not  in  the  last  degree  important 
that  he  [a  judge]  should  be  rendered  perfectly  and  com- 
pletely independent,  with  nothing  to  control  him  but 
God  and  his  own  conscience?  I  have  always  thought, 
from  my  earliest  youth  until  now,  that  the  greatest 
scourge  an  angry  Heaven  ever  inflicted  upon  an  un- 
grateful and  a  sinning  people  was  an  ignorant,  a  cor- 
rupt, or  a  dependent  judiciary."  ^  Will  the  independ- 
ence of  District  judges  continue  if  they  are  subject  to 
attacks  by  the  President  who  appoints  them  ?  Am  I  not 
justified  in  saying  that  the  executive,  in  view  of  his 
appointive  power,  should  never  either  by  words  of  ap- 
proval or  disapproval  make  himself  a  reviewing  power 
of  their  decisions? 

The  Star  Chamber,  created  by  the  King  and  filled  by 
judges  who  were  his  servile  tools,  developed  such  ty- 
rannical abuses  that  the  English  people  destroyed  not 
only  the  Court  but  Charles  I  himself  for  such  tyranny. 
Our  people  should  demand  the  fundamental  constitu- 
tional right  for  the  federal  judiciary  to  unquestioned 
independence,  free  from  any  interference  from  the  ex- 

•  Miller,  The  Constitution  of  the  United  States,  p.  341, 
note  I. 


EXECUTIVE    USURPATION  95 

ecutive  either  by  influence  in  advance  of  a  decision  or 
by  attack  after  a  decision.  If  federal  judges  are  not 
already  aflfected  by  the  opinions  of  the  President,  how 
long  will  they  continue  to  resist  such  strenuous  assaults 
upon  their  action?  The  consequences  of  such  attacks 
on  the  Supreme  Court  of  the  United  States  by  the 
President  ought  to  be  so  plain  as  to  alarm  the  dullest 
comprehension.  The  Emperor  Tiberius,  according  to 
Tacitus,  was  in  the  habit  of  taking  his  seat  in  the  law 
courts,  and  by  his  presence  overawing  them,  thereby 
gradually  destroying  the  freedom  of  the  courts.  His 
methods  were  not  less  calculated  to  influence  the  action 
of  the  judges  than  those  of  our  President. 

But  it  is  not  alone  that  the  independence  of  a  sepa- 
rate branch  of  the  government  is  thus  imperiled  by  the 
President's  action;  it  is  of  the  highest  importance  that 
the  people  believe  that  the  United  States  Supreme  Court 
decides  its  cases,  if  not  always  wisely,  at  least  without 
being  influenced  by  another  branch  of  the  government. 
Should  the  members  of  that  court  be  put  under  the  em- 
barrassment of  having  it  appear  that  their  action  is  in- 
fluenced by  the  words  of  the  President?  "  Next  in 
importance  to  the  duty  of  rendering  a  righteous  judg- 
ment is  that  of  doing  it  in  such  a  manner  that  will  beget 
no  suspicion  of  the  judge."  ^  And  Lord  Campbell  de- 
clared "  that  tribunals  should  take  care  that  not  only 
in  their  decrees  they  are  not  influenced  by  over- 
powerful  interests,  but  to  avoid  the  appearance  of  labor- 
ing under  such  influence."  ^    How  can  the  judges  of  the 

'  Oakley  v.  Aspinwall,  3  New  York,  549. 

»  Dimes  v.  Grand  Junction  Canal,  3  House  of  Lords  Cases,  793. 


96  FEDERAL   USURPATION 

Federal  courts  avoid  the  appearance  of  laboring  under 
the  influence  of  the  overpowerful  executive  if  he  con- 
tinues in  his  exhortations  that  the  Executive  and  Con- 
gress possess  inherent  powers  and  that  the  Supreme 
Court  should  so  decide?  How  can  these  courts  retain 
their  independence  if,  after  they  have  made  decisions, 
they  are  subject  to  animadversion  in  the  annual  mes- 
sages of  the  President  to  Congress?  Such  conduct,  I 
submit,  tends  clearly  to  impair  the  usefulness  of  the 
judiciary  as  an  independent  department  of  the  govern- 
ment and  merits  condemnation. 

It  is  not  alone  the  courts  which  the  President  appar- 
ently has  attempted  to  influence  in  their  action,  but  he 
persistently  seeks  to  control  the  action  of  the  Senate 
and,  to  some  extent,  the  House  of  Representatives.  It 
is  the  intent  of  the  Constitution  that  Congress,  made 
up  of  the  representatives  of  the  people,  shall  be  the 
judges  of  what  laws  are  required  by  the  public  welfare. 
If  the  President  brings  power  to  bear  upon  Congress 
to  affect  legislation,  even  though  the  people  wish  the 
legislation,  he  is  still  encroaching  upon  the  field  of  an 
independent  department  of  government.  During  the 
last  few  years  many  measures  have  been  enacted  under 
stress  of  executive  pressure  which  otherwise  would 
have  stood  no  chance  of  passage.  In  the  South  Ameri- 
can countries,  congresses  and  courts  employ  them- 
selves in  registering  executive  decrees.  If  present  con- 
ditions continue  the  same  condition  will  exist  in  our 
own  country.  People  desiring  legislation  well  know 
this,  and  again  and  again  we  read  in  the  newspapers  of 
applications  being  made  by  the  great  railroad  interests 


EXECUTIVE    USURPATION  97 

of  the  country  to  the  President,  not  to  the  Congress,  to 
institute  and  affect  legislation.  The  United  States  Sen- 
ate has  come  to  realize  that  no  fight  is  thoroughly 
equipped  unless  the  President  is  in  it.  He  longs  to  take 
a  hand  in  legislation.  The  newspapers  for  several  years 
have  been  representing  him  with  his  "  big  stick  "  going 
after  the  United  States  Senate  and  House  and  com- 
pelling them  to  pass  laws.  In  the  passage  of  the  Elkins 
Bill  in  the  Senate;  in  the  passage  of  the  Rate  Bill,  and 
practically  all  the  leading  measures  which  have  come 
before  the  two  Houses  of  Congress,  the  President  has 
had  his  innings  and  his  party  in  the  Senate  and  House 
have  consulted  with  him  and  have  carried  out  his  in- 
structions. The  American  people  are  coming  to  look 
upon  the  President  as  the  real  power  behind  legislation. 
When  the  Rate  Bill  was  in  the  Senate  of  the  United 
States,  Senator  Aldrich,  of  Rhode  Island,  and  other 
Senators  sought  to  amend  it  by  providing  for  a  judicial 
review  of  the  action  of  the  Inter-state  Commerce  Com- 
mission, but  the  President's  party  opposed  this  action. 
James  Wilson,  whom  President  Roosevelt  invokes  as 
authority  upon  the  Constitution,  in  his  lectures  upon 
Law  in  1791  before  the  then  College  of  Philadelphia, 
said :  "  The  independence  of  each  power  (or  Department 
of  Government)  consists  in  this,  that  its  proceedings  and 
the  motives,  views  and  purposes,  which  produce  these 
proceedings  should  be  free  from  the  remotest  influence, 
direct  or  indirect,  of  either  of  the  other  two  powers." 
The  practice,  it  is  said,  of  wearing  hats  during  the  ses- 
sions of  the  House  of  Commons  is  an  expression  of  the 
early  feeling  of  the  English  Commons  against  an  ap- 


98  FEDERAL   USURPATION 

pearance  of  servility;  they  would  not  uncover  before 
Speaker  or  King.^ 

In  1783,  when  Fox  brought  in  his  famous  bill  for 
organizing  the  government  of  India,  a  great  outcry 
against  the  bill  arose.  It  was  alleged  that  the  object  of 
the  bill  was  the  centralization  of  the  immense  patronage 
of  India  in  the  hands  of  a  few  old  Whig  families. 
George  III,  seeing  the  people  aroused  against  the  Min- 
istry, asked  Lord  Temple  to  let  the  members  of  the 
House  of  Lords  know  that  any  peer  who  should  vote  in 
favor  of  the  bill  would  be  regarded  as  an  enemy  of  the 
King.  Four  days  later  the  House  of  Commons  by  a 
vote  of  153  to  80  resolved  that:  "To  report  any  opin- 
ion, or  pretended  opinion,  of  his  Majesty  upon  any  bill 
or  other  proceeding  pending  in  either  House  of  Parlia- 
ment, with  a  view  to  influencing  the  votes  of  the  mem- 
bers, is  a  high  crime  and  misdemeanor,  derogatory  to 
the  honor  of  the  Crown,  a  breach  of  the  fundamental 
principles  of  Parliament  and  subversive  to  the  Constitu- 
tion of  this  country."  ^  Now  observe  that  this  repre- 
sented the  spirit  of  English  liberty  one  hundred  and 
twenty-four  years  ago  under  George  III,  whose  tyranny 
was  the  bugaboo  of  the  makers  of  the  Constitution,  the 
most  powerful  King  in  England  during  the  eighteenth 
century,  and  perhaps  it  would  not  be  an  exaggeration 
to  say  the  most  powerful  King  of  England  for  the  last 
two  hundred  years;  yet  George  III,  in  all  his  power,  was 
thus  reprimanded. 

»  MacMaster,  History  of  the  People  of  the  United  States, 
p.  105. 

*  John  Fiske,  The  Critical  Period  of  American  History,  p.  43. 


EXECUTIVE    USURPATION  99 

To-day  usurpation  has  become  so  common  upon  the 
part  of  the  President  that  we  think  Httle  of  it,  yet  an 
interference  by  the  Kaiser  with  the  action  of  the  Reich- 
stag, even  when  it  is  done  indirectly,  creates  wide- 
spread indignation.  Before  the  opening  of  the  sit- 
tings of  the  Reichstag,  the  court  chaplain  preaches  a 
sermon  in  the  chapel  of  the  imperial  palace  before  the 
members  of  the  Reichstag  and  the  German  Emperor. 
Dr.  Faber,  who  now  occupies  that  position,  in  preaching 
the  usual  sermon  before  the  recent  opening  of  the  cham- 
ber, said :  "  The  Reichstag  ought  to  consist  entirely 
of  loyal  Deputies  who  are  looking  to  and  following 
the  Kaiser  with  perfect  faith,  casting  aside  all  doubt  and 
all  questionings.  If  we  had  such  a  Reichstag  we  could 
safely  leave  the  control  of  our  destinies  to  God  and  the 
Emperor."  These  words  are  said  to  have  created  almost 
a  revolution  in  Berlin.  The  members  of  the  Reichstag 
indignantly  resented  such  teachings.  But  while  Con- 
gress is  in  session,  our  newspapers  each  day  give  much 
space  to  describing  how  the  President  is  guiding  the 
Senate,  championing  the  rights  of  the  people,  how  the 
Senate  is  defiant,  how  the  President  insists  upon  the 
recognition  of  the  people's  rights,  and  the  play  goes  on, 
and  the  American  people  seem  oblivious  to  the  porten- 
tous meaning  of  such  usurpations  of  power. 

Mr.  Root  assumed,  in  his  speech  before  the  Pennsyl- 
vania Society,  that  the  people  of  the  states  are  neglect- 
ing to  perform  their  duties.  He  tells  us  that  "  the  in- 
stinct of  self-government  among  the  people  of  the  United 
States  is  too  strong  to  permit  them  long  to  respect  any- 
one's right  to  exercise  a  power  which  he  fails  to  exercise," 


lOO  FEDERAL   USURPATION 

and  "  if  the  states  fail  to  furnish  it  in  due  measure, 
sooner  or  later  constructions  of  the  Constitution  will  be 
found  to  vest  the  power  where  it  will  be  exercised — in 
the  national  government."  This  assumption  is  without 
foundation.  The  states  have  long  exercised  their  powers 
with  much  greater  vigor  than  has  the  national  govern- 
ment. Thirty  of  the  states  and  territories  of  the  Union 
had  established  commissions  or  passed  laws  to  regulate 
the  railroads,  before  Congress  in  1887  passed  the  Inter- 
State  Commerce  Law,  establishing  the  Inter-State  Com- 
merce Commission.  Years  of  agitation  were  required 
before  Congress  passed  the  law  allowing  the  creation  of 
the  Inter-State  Commerce  Commission,  and  then  it  was 
the  Granger  movement,  from  1 871  to  1887,  in  the  North- 
western States,  which  finally  brought  about  its  passage.^ 
For  many  years  past  the  regulation  of  railroads  by  State 
Railway  Commissions  has  been  frequently  reviewed  in 
the  United  States  Supreme  Court.^ 

The  state  governments  are  much  better  adapted  than 
the  national  government  for  the  enforcement  of  laws 
regulating  railway  rates.  The  legislatures  of  the  several 
states  have  original  power  to  pass  all  laws  affecting 
state  interests,  with  no  limitations,  except  those  imposed 
upon  their  action  by  their  respective  constitutions,  while 
the  United  States  government  has  only  the  powers  dele- 
gated to  it  by  the  states.  The  Federal  courts  have  no 
criminal  jurisdiction  at  common  law,  their  criminal  law 

«  Lloyd,  Wealth  against  Commonwealth,  p.  371. 

»  143  U.  S.,  344;  154  U.  S.,  362,  397;  169  U.  S.,  546;  176  U. 
S.,  174;  35  Federal  Reporter,  866;  176  U.  S.,  167;  186  U.  S., 
257,  264. 


EXECUTIVE   USURPATION  lOt 

is  technical,  and  there  are  great  difficulties  in  those  courts 
in  enforcing  the  statutes  punishing  crimes.  The  diffi- 
culty with  enforcing  railway  rate  bills  and  regulations 
of  commerce  in  state  courts  has  been  found  in  the  fact 
that  whenever  an  attempt  was  made  the  United  States 
Courts  interposed  upon  the  plea  that  they  affected  Inter- 
State  Commerce.  If  the  United  States  government 
would  relinquish  this  right,  the  state  courts  could  much 
more  easily  protect  their  people  from  the  injustice  of 
outrageous  rates  on  the  part  of  the  railways. 

That  the  states  have  exhibited  diligence  in  attempting 
to  control  the  rates  of  freight  and  passenger  traffic  dur- 
ing the  last  year  is  apparent  from  the  very  fact  that, 
during  the  winter  and  spring  of  1907,  the  heads  of  rail- 
ways were  going  in  rapid  succession  to  Washington  to 
see  the  President,  and  to  invoke,  as  we  are  told  by  the 
newspapers,  his  aid  for  national  rather  than  state  con- 
trol of  railways.  More  than  one  captain  of  the  railway 
industry  has  expressed  the  wish  within  the  last  year  that 
the  states  might  be  prohibited  from  legislating  even 
with  reference  to  railways  that  lie  wholly  within  their 
borders,  but  which  are  feeders  of  trunk  lines.  There 
is  reason  to  believe  that  the  President's  activity  and  anx- 
iety in  the  matter  is  to  take  over  the  whole  control  of 
the  railways  of  the  country  to  the  national  government 
upon  the  urgent  request  of  the  railroad  managers. 

Another  evidence  that  the  states  are  more  progressive 
than  the  national  government  is  found  in  the  fact  that 
amendments  are  frequently  made  to  state  constitutions, 
and  that  many  of  their  constitutions  provide  for  a  Con- 
stitutional   Convention   at   the    end    of    each   period    of 


102  FEDERAL   USURPATION 

twenty  years.  The  Constitution  of  the  United  States  has 
been  amended  but  twice  since  the  first  ten  amendments 
in  1789  until  the  stormy  reconstruction  days;  and  the 
strange  feature  of  the  case  to-day  is  that  neither  the 
President  nor  any  of  the  men  who  are  urging  the  courts 
to  construe  the  Constitution  in  such  a  manner  as  to  en- 
large the  powers  of  the  national  government,  mention 
the  conferring  of  such  power  upon  the  national  govern- 
ment by  such  amendments.  In  short,  the  people  have 
the  power  to  amend  the  Constitution,  but  instead  of  pro- 
curing their  action  to  that  end  the  President  and  his 
advisers  prefer  to  seek  power  by  judicial  construction. 

Eight  states,  Ohio,  Indiana,  Illinois,  Wisconsin,  Ne- 
braska, Pennsylvania,  Missouri,  and  West  Virginia, 
passed  laws  during  the  last  winter  fixing  the  passenger 
fare  of  their  states,  while  the  legislatures  of  New  York 
and  Virginia  passed  similar  acts,  and  the  governors  of 
those  states  vetoed  them.  During  the  last  two  years 
the  legislature  of  the  state  of  New  York  passed  laws 
ordering  a  life  insurance  investigation,  the  New  Life 
Insurance  Code,  a  law  prohibiting  corporations  from  con- 
tributing to  campaign  funds  and  expenditures,  the 
Eighty-cent  Gas  Bill  for  New  York  City,  the  Elsberg 
Rapid  Transit  Bill,  and  the  Public  Utilities  Bill.  Accord- 
ing to  the  report  of  Senator  Thomas  C.  Piatt  of  the 
United  States  Express  Company  to  its  stockholders  in 
April,  1907,  twelve  of  the  twenty-six  states  in  which  the 
company  was  doing  business  in  the  year  1907  had  passed 
statutes  enlarging  the  powers  of  the  railroad  commis- 
sioners over  the  actions  of  his  company.  Insurance  in- 
vestigation along  the  lines  of  the  Armstrong  Committee 


EXECUTIVE    USURPATION  103 

Bills  in  New  York  has  been  passed  or  considered  by  the 
legislatures  of  at  least  two  thirds  of  the  states  of  the 
Union  during  the  last  year.  The  only  railroad  under  na- 
tional control,  the  Union  Pacific,  had  its  Credit  Mobilier ; 
and  the  District  of  Columbia,  controlled  by  a  United 
States  commission,  has  as  corrupt  government  as  can 
be  found  in  the  United  States,  with  laws,  says  Congress- 
man McCall,  for  the  creation  of  corporations  which 
"  would  make  a  Jerseyman  blush."  The  State  of  New 
York  and  many  of  the  other  states  of  the  Union  have 
recently  passed  rigid  laws  requiring  the  publication  of 
all  election  expenses,  but  Congress  is  unable  to  pass  a 
similar  bill  governing  national  elections. 

The  state  easily  makes  and  unmakes  its  laws,  and  if 
it  makes  mistakes  they  can  be  soon  corrected ;  while  the 
national  government,  with  all  its  checks  and  balances, 
its  ponderous  machinery,  the  liability  of  one  department 
to  represent  one  party  and  another  department  to  repre- 
sent another  party,  brings  about  changes  only  after  years 
of  delay.  Ten  years  passed  after  the  Presidential  elec- 
tion of  1876  before  Congress  attempted  to  remedy  the 
defects  in  the  Constitution  which  made  necessary  the 
Electoral  Commission.  Our  rigid  currency  system,  based 
upon  national  bonds,  and  our  half  dozen  or  more  dif- 
ferent kinds  of  currency,  have  continued  for  fifty  years, 
during  all  of  which  time  students  of  finance  have  ob- 
served its  inelastic  condition,  and  the  danger  of  the  sys- 
tem in  times  of  panic,  when  it  is  impossible  to  increase 
the  amount  of  currency  until  the  panic  is  over,  and  still 
Congress  has  allowed  it  to  continue  with  but  slight 
changes.     Even  the  Sherman  Anti-Trust  Law  was  not 


I04  FEDERAL    USURPATION 

enforced  against  the  Northern  Securities  Company,  until 
the  governors  of  the  states  through  which  the  Great 
Northern  and  the  Northern  Pacific  railways  passed  held 
a  meeting  to  consider  how  to  prevent  the  merger  becom- 
ing effective,  and  passed  a  resolution  asking  for  the  en- 
forcement of  the  law.  And  then  the  national  govern- 
ment had  to  be  reenforced  in  its  action  by  the  opinion  of 
the  Attorney-Generals  of  two  states  through  which  the 
roads  passed,  declaring  the  combination  illegal. 

The  national  government,  we  have  seen,  has  failed 
in  many  respects  to  perform  its  functions  under  the 
Constitution.  What  would  be  thought  if  the  states 
attempted  to  perform  these  neglected  functions  accord- 
ing to  their  standard  of  right  and  justice?  The  idea, 
supported  by  the  President  and  others,  that  the  na- 
tional government  should  take  over  the  affairs  of  the 
state  governments  is  not  only  a  violation  of  the  Con- 
stitution of  the  United  States,  but  it  is  absolutely 
impracticable.  "  No  political  dreamer,"  said  John  Mar- 
shall, "  would  ever  be  wild  enough  to  think  of  break- 
ing down  the  lines  which  separate  the  states  and  of 
compounding  the  American  people  into  one  common 
mass."  * 

James  Wilson,  upon  whose  teachings  the  President 
relies  for  his  theory  of  inherent  powers  in  the  national 
government,  in  the  debates  on  the  adoption  of  the  Con- 
stitution before  the  Pennsylvania  Convention,  said: 
"  To  support,  with  vigor,  a  single  government  over  the 
whole  extent  of  the  United  States  would  demand  a  sys- 
tem of  the  most  unqualified  and  the  most  unremitted 

'  McCulloch  V.  the  State  of  Maryland,  4  Wheaton,  316. 


EXECUTIVE    USURPATION  105 

despotism."  ^  In  the  convention  to  frame  the  Consti- 
tution, he  said :  "  The  state  governments  ought  to  be 
preserved.  The  freedom  of  the  people,  and  their  in- 
ternal good  police,  depend  on  their  existence  in  full 
vigor."  ^  Hamilton,  who  more  than  any  other  delegate 
believed  in  a  strong  central  government,  said  in  the 
New  York  Convention  while  discussing  its  adoption : 
"  I  insist  that  it  never  can  be  the  interest  or  desire  of 
the  national  legislature  to  destroy  the  state  govern- 
ments. It  can  derive  no  advantage  from  such  an  event ; 
but,  on  the  contrary,  would  lose  an  indispensable  sup- 
port, a  necessary  aid  in  executing  the  laws,  and  convey- 
ing the  influence  of  government  to  the  doors  of  the 
people.  The  Union  is  dependent  on  the  will  of  the 
state  governments  for  its  chief  magistrate,  and  for  its 
Senate.  The  blow  aimed  at  the  members  must  give  a 
fatal  wound  to  the  head,  and  the  destruction  of  the 
states  must  be  at  once  a  political  suicide.  Can  the 
national  government  be  guilty  of  this  madness  ?  "  ' 

The  United  States  Supreme  Court  is  not  only  under 
a  high  obligation  not  to  deprive  the  states  of  their  re- 
served rights,  but  it  has  again  and  again  declared  that 
its  obligation  requires  it  to  protect  those  rights  as 
sacredly  as  it  would  protect  the  rights  delegated  by 
the  states  to  the  national  government.  Chief  Justice 
Chase,  speaking  for  the  Court,  said :  "  It  may  be  not 
unreasonably  said  that  the  preservation  of  the  states 
and  the  maintenance  of  their  governments  are  as  much 

'  Elliot's  Deb.,  vol.  ii,  p.  427. 
'  Elliot's  Deb.,  vol.  i,  p.  399. 
»  Elliot's  Deb.,  vol.  ii,  p.  353. 


Io6  FEDERAL    USURPATION 

within  the  design  and  care  of  the  Constitution  as  the 
preservation  of  the  Union  and  the  maintenance  of  the 
national  government.  The  Constitution,  in  all  its  pro- 
visions, looks  to  an  indestructible  Union  composed  of 
indestructible  states."  ^  Mr.  Justice  Miller,  in  his  work 
on  the  Constitution,  prepared  after  his  retirement  from 
that  court,  said :  "  In  my  opinion  the  just  and  equal 
observance  of  the  rights  of  the  states  and  of  the  gen- 
eral government  as  defined  by  the  present  Constitution, 
IS  as  necessary  to  the  permanent  prosperity  of  our  coun- 
try and  to  its  existence  for  another  century,  as  it  has 
been  for  the  one  whose  close  we  are  now  celebrating."  * 
The  states,  in  delegating  a  portion  of  their  powers 
to  the  national  government,  did  not  create  an  arbiter 
of  their  own  selection  to  guard  their  reserved  rights. 
Although  the  states  must  rely  entirely  upon  the  im- 
partiality and  justice  of  the  United  States  Supreme 
Court  for  the  protection  of  their  reserved  rights,  the 
members  of  that  Court  are  appointed  by  the  President 
with  the  consent  of  the  Senate.  The  Supreme  Court, 
in  its  most  recent  decision,^  supports  the  states  by  de- 
claring that  the  national  government  has  no  legislative 
powers  affecting  the  nation  as  a  whole  except  those 
enumerated  in  the  grant  of  powers;  and  that  the  tenth 
Amendment  to  the  Constitution,  reserving  all  powers 
to  the  states  not  expressly  granted  to  the  nation  nor 
prohibited  to   the  states,   "  is  not   to  be   shorn   of  its 

>  Texas  v.  White,  7  Wallace,  725;  see  also  11  Wallace,  125; 
199  U.  S..  453. 

'  Miller  on  The  Constitution,  p.  24. 

»  Kansas  v.  Colorado,  206  U.  S.,  89,  90,  91  of  opinion. 


EXECUTIVE    USURPATION  107 

meaning  by  any  narrow  or  technical  construction,  but 
is  to  be  considered  fairly  and  liberally  so  as  to  g^ve 
effect  to  its  scope  and  meaning." 

It  would  unduly  extend  the  discussion  in  this  chap- 
ter to  fully  enumerate  the  many  attempts  on  the  part 
of  the  President  during  the  last  three  years  "  to  increase 
the  power  of  the  Federal  Government  through  executive 
action^  Some  of  these  usurpations  have  been  carried 
on  through  the  heads  of  departments  responsible  to  him 
for  their  action.  A  few  only  of  the  numerous  usurpa- 
tions will  be  mentioned. 

A  bill  was  introduced  into  the  House  of  Representa- 
tives in  the  winter  of  1904  by  Mr.  Sulloway,  a  member 
of  the  House  from  the  State  of  New  Hampshire,  which 
proposed  that  any  person  who  had  served  ninety  days 
in  the  army  or  in  the  navy  during  the  war  of  the  Re- 
bellion, and  who  had  reached  the  age  of  sixty-two  years, 
should  become  entitled  to  a  pension  of  $8  a  month ; 
that  everyone  who  had  become  sixty-six  years  of  age 
should  be  entitled  to  $10  a  month,  and  everyone  who 
had  reached  the  age  of  seventy  years  should  be  en- 
titled to  a  pension  at  the  rate  of  $12  a  month.  This 
measure  the  House  declined,  or  at  least  failed  to  enact, 
whereupon  the  Secretary  of  the  Interior,  by  an  order 
dated  March  15,  1904,  decreed  that  its  terms  should 
nevertheless  govern  the  Pension  Office,  and  millions  of 
dollars  have  been  paid  out  of  the  Treasury  without  any 
other  warrant  of  authority  than  this  order  or  decree  of 
the  Interior  Department.  Five  hundred  years  before 
the  adoption  of  our  Constitution  it  was  the  law  of  Eng- 
land   that   the    Commons   had   the   exclusive   right   to 


Io8  FEDERAL    USURPATION 

originate  money  bills  and  to  determine  the  purposes 
for  which  moneys  appropriated  should  be  used,  and  the 
king  could  not  use  the  public  moneys  except  they  were 
expressly  appropriated  by  the  Commons  for  a  specific 
purpose.  In  1640  the  House  of  Commons  declared: 
"  We  have  had  uninterrupted  possession  of  this  privi- 
lege (the  privilege  of  the  undisputed  control  over  the 
taxation  and  finances  of  the  country)  ever  since  the 
year  1407,  confirmed  by  a  multitude  of  precedents  both 
before  and  after,  not  shaken  by  one  precedent  for  these 
three  hundred  years."  ^  For  an  attempted  violation  of 
this  right  of  the  Commons,  Charles  I  was  sent  to  the 
scaffold.  In  1678  the  House  of  Commons  declared  that 
"  it  is  the  undoubted  and  sole  right  of  the  Commons  to 
direct,  limit,  and  appoint,  in  such  Bills,  the  ends,  pur- 
poses, considerations,  conditions,  limitations,  and  quali- 
fications of  such  grants."  ^ 

"  All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives,"  says  the  Constitution;  and 
power  "  to  lay  and  collect  taxes,  duties,  imposts,  and 
excises,  to  pay  the  debts  and  provide  for  the  common 
defense  and  general  welfare  of  the  United  States,"  is 
given  to  Congress.  Now  it  is  to  be  observed  that  a 
pension  bill  to  provide  for  particular  classes  of  persons 
had  been  introduced  into  Congress,  and  Congress  had 
either  declined  or  had  failed  to  enact  the  law.  "  A  min- 
ister," says  Mr.  Lecky,  "  who  has  asked  and  been  re- 
fused the  sanction  of  Parliament  for  a  particular  policy, 
and  who  then  proceeds  to  carry  out  that  policy  by  other 

'  Stead,  Peers  or  People,  p.  28. 
*  Stead,  Peers  or  People,  p.  29. 


EXECUTIVE   USURPATION  109 

means  without  parliamentary  sanction,  may  be  acting 
in  a  way  that  is  strictly  legal,  but  he  is  straining  the 
principles  of  constitutional  government."  *  Now  we 
have  here  a  case  of  an  executive  officer  who  took  from 
the  Treasury  of  the  United  States  millions  of  dollars 
and  appropriated  them  to  a  purpose  contemplated  by 
this  rejected  law,  without  any  law  or  warrant  whatever 
from  Congress.  It  is  true  that  when  the  question  was 
raised  of  his  right  to  thus  draw  money  from  the  Treas- 
ury of  the  United  States  without  a  law  authorizing  it, 
he  declared  that  he  was  entitled  to  use  the  money  under 
a  prior  statute.  But  he  had  been  administering  that 
same  statute  for  years  upon  a  totally  different  interpre- 
tation, and  only  resorted  to  the  new  interpretation  when 
the  proposed  law  of  Mr.  Sulloway  was  not  passed  by 
the  Congress. 

About  February  i,  1905,  the  President  of  the  United 
States  agreed  with  the  Dominican  Government  on  a 
treaty  or  a  convention  whereby  a  Protectorate  of  the 
United  States  over  San  Domingo  was  created,  and  San 
Domingo  agreed  to  permit  a  receiver  of  its  customs 
duties,  selected  by  the  United  States,  to  collect  the  cus- 
toms and  divide  the  collections.  Forty-five  per  cent 
was  to  go  to  the  support  of  the  Dominican  Govern- 
ment, and  the  remaining  sum  was  to  be  appHed  by  the 
United  States,  or  its  receiver,  in  payment  of  the  for- 
eign indebtedness  of  San  Domingo.  A  considerable  por- 
tion of  this  indebtedness  was  held  by  English  bondholders. 
They  had  about  £750,000  of  bonds  for  which  the  Re- 
public of  San  Domingo  had  received  all  told  £38,000. 
>  Lecky,  Democracy  and  Liberty,  vol.  ii,  p.  57. 


no  FEDERAL   USURPATION 

This  treaty  with  San  Domingo  was  sent  to  the 
United  States  Senate  for  confirmation.  A  majority  of 
the  Committee  on  Foreign  Relations  were  unfavorable 
to  the  treaty,  and  it  was  not  reported  to  the  Senate. 
With  the  treaty  before  the  Committee  on  Foreign  Re- 
lations, and  no  action  having  been  taken  upon  it,  the 
President,  on  April  i,  1905,  entered  into  an  agreement 
or  protocol  with  the  government  of  San  Domingo 
embodying  practically  the  same  provisions  as  existed  in 
the  original  rejected  treaty.  The  original  treaty  pro- 
vided that  the  United  States  was  to  grant  to  the  Do- 
minican government,  aside  from  the  collection  of  its 
revenues,  "  such  other  assistance  as  the  former  (the 
government  of  the  United  States)  may  deem  proper  to 
restore  the  credit,  preserve  the  order,  increase  the  effi- 
ciency of  the  civil  administration,  and  advance  the  ma- 
terial progress  and  welfare  of  the  Dominican  Republic." 
If  a  treaty  containing  this  provision  had  been  confirmed 
by  the  Senate,  the  President  would  have  been  left  the 
discretion  to  take  any  steps  which  he  deemed  proper 
"  to  restore  the  credit,  preserve  the  order,  increase  the 
efficiency  of  the  civil  administration  "  of  San  Domingo, 
and  advance  its  material  progress  and  welfare.  It  is  the 
exercise  of  just  such  discretionary  powers  that  turns  a 
constitutional  officer  into  a  dictator. 

The  government  of  the  United  States,  without  any 
treaty,  through  its  receiver,  actually  collected  the  cus- 
tomhouse duties  of  San  Domingo  from  April  i,  1905, 
until  the  year  1907,  when  at  last,  after  several  modifica- 
tions, the  treaty  was  finally  approved  by  the  Senate. 
Under  what  clause  of  the  Constitution  did  the  Presi- 


EXECUTIVE    USURPATION  iii 

dent  receive  the  right  to  appoint  a  receiver,  take  pos- 
session of  the  customhouse  of  San  Domingo,  collect 
customs  and  turn  a  portion  of  the  amount  collected  over 
to  the  foreign  creditors  of  San  Domingo?  As  execu- 
tive he  can  enforce  only  existing  laws.  Without  any 
authority  whatever,  but  still  in  the  name  of  the  United 
States,  he,  as  its  President,  appointed  a  receiver  of 
these  customs,  and  became  the  collector  for  foreign  na- 
tions for  two  years  without  one  syllable  of  law  to  justify 
his  action.  There  is  not  a  precedent  for  such  action 
in  the  history  of  any  modern  constitutional  country. 
There  is  no  power  given  to  the  President  from  which 
the  right  to  do  this  can  be  possibly  inferred.  He  had 
a  right  to  make  a  treaty  with  San  Domingo  with  the 
consent  of  the  Senate,  but  he  had  no  right  to  act  upon 
any  proposed  treaty  until  it  had  become  a  treaty,  and 
his  action  during  the  whole  period  of  two  years  was  a 
usurpation  of  power.  If,  in  a  time  of  peace  with  no 
crisis  or  emergency  at  hand,  the  President  can  exercise 
such  powers,  what  will  such  a  President  do  when  a 
great  crisis  arises  and  violent  passions  are  excited  as  in 
the  time  of  our  Civil  War? 

An  act  of  Congress  passed  June  28,  1902,  authorized 
the  President  of  the  United  States  to  obtain  by  treaty 
control  of  the  isthmus  or  territory  known  as  Panama, 
a  separate  state  of  the  Republic  of  Colombia,  for  the 
purpose  of  building  a  ship  canal  across  it  between  the 
Atlantic  and  Pacific  Oceans.  This  act  provided  that  if 
the  President  should  be  unable  to  do  so  within  a  rea- 
sonable time  and  upon  reasonable  terms,  that  then  he 
should  proceed  to  acquire  the  necessary  territory  from 


112  FEDERAL   USURPATION 

Costa  Rica  and  Nicaragua.  This  act  appropriated  $io,- 
000,000  to  be  used  by  the  President  toward  the  under- 
taking. It  also  authorized  him  to  pay  for  the  canal 
$40,000,000. 

Pursuant  to  this  authority,  Secretary  Hay  entered 
into  a  treaty  with  Colombia,  which  was  ratified  by  the 
Senate  on  March  17,  1903,  The  Congress  of  the  Re- 
pubhc  of  Colombia,  when  this  treaty  was  brought  before 
them,  refused  to  ratify  it  upon  the  ground  that  they 
could  not  alienate  a  portion  of  their  national  domain 
without  an  amendment  to  their  constitution.  Congress 
was  not  in  session  when  this  treaty  was  rejected  by  the 
Colombian  Government.  The  representatives  of  the  old 
Panama  Canal  Company  and  of  the  new  Panama  Canal 
Company  were  in  New  York  City,  watching  closely  the 
action  of  the  Congress  of  Colombia;  and  it  scarcely  had 
rejected  the  treaty  before  a  scheme  was  concocted  in  a 
law  office  in  New  York  City  to  raise  a  sham  revolution 
in  Panama,  to  protect  it  by  United  States  troops,  and  to 
make  a  new  republic  of  Panama  with  which  to  deal.  On 
November  2,  1903,  the  gunboat  Nashville,  under  direc- 
tions of  the  Navy  Department,  reached  the  Isthmus,  and 
on  the  same  day  an  order  was  sent  from  the  Navy 
Department  to  the  Nashville,  the  Boston,  and  the  Dixie, 
containing  these  instructions:  "Prevent  landing  of  any 
armed  force  with  hostile  intent  at  any  point  within  fifty 
miles  of  Panama.  Government  forces  reported  ap- 
proaching the  Isthmus  in  vessels.  Prevent  landing  if  in 
your  judgment  landing  would  precipitate  conflict." 

Our  rights  in  Panama  were  procured  by  a  treaty  on 
December  12,  1846,  between  our  own  government  and 


EXECUTIVE    USURPATION  113 

New  Granada,  to  whose  rights,  under  this  treaty,  the 
Colombian  RepubHc  had  succeeded.  In  that  treaty  we 
guaranteed  to  New  Granada  the  rights  of  sovereignty 
and  property  which  she  possessed  in  Panama  and 
agreed  that  "  if  the  complete  and  absolute  sovereignty 
and  independence  (of  New  Granada)  should  ever  be  as- 
sailed by  any  power  at  home  or  abroad,  the  United 
States  will  be  ready,  cooperating  with  the  Government 
and  their  ally,  to  defend  them."  But  when  Panama,  a 
state  of  Colombia,  sought  to  secede,  we,  who  had 
fought  a  four  years'  war  to  establish  the  doctrine  that  a 
state  had  no  right  to  secede,  sent  our  gunboats  to  the 
shores  of  a  friendly  country  which  we  had  agreed  to 
protect  if  it  was  ever  assailed  by  any  power  at  home  or 
abroad  and  to  always  recognize  its  sovereignty,  we,  in 
such  a  crisis,  sent  our  gunboats  to  aid  in  dismember- 
ing it. 

Now  observe  the  hand  of  preparation.  On  Novem- 
ber 2d  our  gunboats  had  reached  Panama.  On  the 
next  day  Assistant  Secretary  Loomis,  of  the  State  De- 
partment, cabled  from  Washington  to  the  Consul  of  the 
United  States  at  Panama:  "Uprising  on  isthmus  re- 
ported. Keep  department  promptly  and  fully  in- 
formed." The  uprising  which  was  contemplated,  how- 
ever, had  not  come  ofif  on  time  and  the  Consul  General 
at  Panama  cabled  this  reply :  "  No  uprising  yet ;  re- 
ported there  will  be  to-night."  According  to  the  plan 
the  insurrection  did  come  off  at  night  pursuant  to  the 
telegram.  In  this  way  a  valuable  portion  of  a  friendly 
state  was  wrested  from  the  Republic  of  Colombia.  Our 
gunboats   and   troops   held   at   bay  the  forces   sent  by 


114  FEDERAL    USURPATION 

Colombia  to  suppress  this  insurrection,  and  this  was  all 
done  under  the  direction  of  the  President  or  his  Secre- 
tary. Suppose  Great  Britain,  before  the  commencement 
of  the  Rebellion,  had  sent  her  war  vessels  to  our  shores, 
not  only  inciting  the  South  to  an  insurrection  but  aid- 
ing them  to  carry  it  out,  what  would  we  have  thought 
of  the  justice  of  such  an  action?  We  would  have  met 
such  a  step  with  force  and  fought  Great  Britain,  as  well 
as  the  South,  in  the  resentment  of  such  an  insult. 

The  President  in  all  this  acted  in  disregard  of  the 
act  of  Congress  which  directed  him,  in  case  he  could 
not  obtain  control  of  the  Isthmus  of  Panama  in  a  rea- 
sonable time  and  upon  reasonable  terms,  then  to  acquire 
the  necessary  territory  for  the  canal  from  Costa  Rica 
and  Nicaragua.  If  the  demands  of  a  high  civilization 
require  that  we  appropriate  Panama  to  our  own  uses, 
will  not  that  high  civilization  also  demand  that  we  pay 
Colombia  for  the  part  of  her  territory  which  we  have 
deliberately  taken  without  giving  her  any  return  what- 
ever? How  does  tnis  unwarrantable  seizure  of  Panama 
differ  materially  from  the  annexation  of  Texas?  the 
expedition  of  General  Lopez  against  Cuba  in  1851?  the 
spirit  of  the  shameless  Ostend  Manifesto?  the  counte- 
nance of  the  government  to  the  filibustering  expedition 
of  William  Walker  to  Nicaragua  in  1857?  or  the  later 
attempts  to  acquire  Cuba  in  1851-59?  And  we  continue 
as  we  did  in  these  other  shameless  attacks  upon  the 
rights  of  the  weak,  to  measure  honor  by  inclination  and 
justice  by  expediency. 

About  midnight  of  August  13  and  14,  1906, 
shots  were  fired  in  the  village  of  Brownsville,  Texas, 


EXECUTIVE    USURPATION  115 

where  the  Twenty-fifth  Infantry,  composed  of  negro 
troops,  were  on  duty  in  Fort  Brown.  A  poHce  officer 
was  killed,  and  when  the  attention  of  the  government 
was  called  to  the  suspicion  that  these  shots  had  been 
fired  by  members  of  the  Infantry,  Major  Blocksom,  of 
the  United  States  army,  was  sent  to  Brownsville  to  in- 
vestigate. He  took  the  statements  of  twenty-one  wit- 
nesses, eight  only  of  whom  claimed  to  be  eyewit- 
nesses of  the  matter.  Major  Blocksom  made  his  report 
to  his  superior.  General  Garlington,  of  the  regular  army, 
that  the  soldiers  of  the  Twenty-fifth  Infantry  he  had  in- 
terrogated had  denied  any  knowledge  whatever  of  the 
shooting  or  of  the  absence  of  their  comrades  from  the 
fort  on  that  occasion. 

When  this  report  came  to  the  attention  of  the  Presi- 
dent he  sent  General  Garlington  to  Fort  Reno,  where 
the  members  of  the  Infantry  were  encamped,  and  Gen- 
eral Garlington  there  informed  the  soldiers  that  unless 
they  frankly  and  fully  disclosed  any  knowledge  which 
they  had  as  to  who  of  their  comrades  had  committed 
the  oflFense,  that  they  would  be  discharged  from  the 
army  and  debarred  from  ever  again  entering  the  service. 
Even  under  this  threat  all  the  soldiers  denied  having 
anything  to  do  with  the  shooting  or  any  knowledge 
whatever  of  who  did  it.  General  Garlington  made  his 
report  to  the  President  and  recommended  that  Com- 
panies B,  C,  and  D  of  the  Twenty-fifth  Infantry,  com- 
prising 167  soldiers  and  officers,  be  discharged  without 
honor  and  be  forever  debarred  from  enlisting  in  the 
army  and  navy  of  the  United  States,  as  well  as  from 
employment  in  any  civil  capacity  by  the  Government. 


Il6  FEDERAL    USURPATION 

Upon  the  back  of  this  report  the  President  wrote :  "  Let 
this  recommendation  be  executed."  General  Garling- 
ton,  in  his  report,  said :  "  In  making  this  recommenda- 
tion I  recognize  the  fact  that  a  number  of  men  who  have 
no  direct  knowledge  as  to  the  identity  of  the  men  of  the 
Twenty-fifth  Infantry  who  actually  fired  the  shots  on 
the  night  of  August  13,  1906,  will  incur  this  extreme 
penalty." 

It  is  conceded  that  only  a  small  number  of  the  soldiers 
had  anything  to  do  with  the  aflfray.  No  one  of  these 
167  men  were  summoned  before  a  court-martial  or 
given  any  opportunity  whatever  to  examine  or  cross- 
examine  witnesses,  nor  were  they  represented  by 
counsel,  nor  did  they  have  a  legal  hearing  in  any  way 
whatever.  Twelve  men,  consisting  of  the  Sergeant  of 
the  Guard,  the  men  on  guard,  and  other  noncommis- 
sioned officers  in  charge  of  the  quarters,  the  guns,  and 
the  gun  racks  on  the  night  of  August  13,  and  who 
must  have  known  of  the  absence  from  the  fort  of  a 
part  of  the  three  companies,  if  they  were  absent,  and 
must  have  been  implicated  to  some  extent  in  the  matter 
if  it  occurred,  were  arrested  by  the  state  authorities. 
An  investigation  covering  three  weeks  before  the  grand 
jury  at  Brownsville  took  place,  and  they  were  finally 
dismissed  by  the  grand  jury  on  the  ground  that  there 
was  no  evidence  whatever  upon  which  to  convict  them. 
It  is  elementary  and  fundamental  law  that  in  times  of 
peace  a  soldier  or  officer  accused  of  crime  who  denies 
its  commission  cannot  be  dismissed  without  honor  and 
deprived  of  the  right  of  reenlistment  and  the  right  to 
hold  civil  office  under  the  government  of  the  United 


EXECUTIVE   USURPATION  117 

States,  without  charges  being  formulated  and  a  hearing 
given  him  before  a  court-martial.  The  President  had 
not  the  slightest  legal  right  to  discharge  these  men  and 
inflict  upon  them  the  penalty  which  was  inflicted  without 
such  a  hearing. 

The  President  is  the  Commander  in  Chief  of  the  army 
and  navy  of  the  United  States,  but  Congress  is  given 
the  power  to  make  rules  for  the  government  and  regu- 
lation of  the  land  and  naval  forces,  and  Congress,  in 
1895,  prescribed  the  conditions  under  which  a  soldier 
in  the  regular  army  might  be  discharged  without  honor. 
The  Articles  of  War  then  enacted  by  Congress  under 
sixty-one  separate  provisions  prescribes  the  different  of- 
fenses for  which  a  soldier  may  be  brought  before  a  court- 
martial  and  punished,  and  the  sixty-second  provision  of 
these  Articles  of  War  provides  that  all  other  cases  must 
be  punished  as  a  court-martial  may  direct.  By  the  ad- 
vice of  the  Department  of  War,  charges  against  the  twelve 
men  whom  the  Texan  authorities  sought  to  indict  were 
prepared  under  this  sixty-second  section  of  the  Articles 
of  War,  with  specifications  and  lists  of  witnesses,  and 
apparently  with  the  intent  to  bring  each  of  the  twelve 
before  a  court-martial.  But  because  the  President  had 
exercised  his  alleged  power  to  discharge,  the  apparent 
inconsistency  of  such  an  arraignment  with  his  act  brought 
the  matter  to  an  end  without  a  court-martial. 

Notwithstanding  all  these  provisions  the  President, 
without  a  hearing,  discharged  these  men  without  honor 
and  debarred  them  from  reenlistment  or  from  holding 
any  civil  office  under  the  United  States.  General  Ains- 
worth,  the  Military  Secretary  of  the  War  Department, 


Il8  FEDERAL   USURPATION 

said  in  the  report  which  he  made  to  the  President :  "  A 
protracted  examination  of  the  official  records  has  thus 
far  resulted  in  the  failure  to  discover  a  precedent  in  the 
Regular  Army  for  the  discharge  of  these  members  of 
three  companies  of  the  Twenty-fifth  Infantry  who  were 
present  on  the  night  of  August  13,  1906,  when  an  affray 
in  the  city  of  Brownsville  took  place."  It  would  seem  that 
the  President  knew  that  he  had  no  right  to  discharge 
these  men  without  their  conviction  by  a  court-martial,  for 
in  March,  1903,  to  a  question  relative  to  the  retention 
in  the  army  of  a  man  accused  of  murder,  he  said :  "  In 
this  matter,  even  if  this  man  is  a  murderer,  I  am  helpless, 
I  have  absolutely  no  power  to  dismiss  anybody  from  the 
army  in  time  of  peace."  ^  The  President  is  not  above 
the  law ;  he  is  the  sworn  servant  of  the  law.  His  act 
in  this  case  was  known  to  every  citizen  of  the  land. 
There  is  no  greater  menace  to  our  country  to-day  than 
the  prevalent  disregard  of  the  orderly  enforcement  of 
the  law.  Between  the  years  1885  and  1904  inclusive, 
2,286  executions  for  murder,  after  trials  and  convictions, 
have  taken  place.  During  the  same  period  2,917  sus- 
pected men,  mostly  negroes,  have  been  lynched,  and  a 
considerable  number  of  them  were  publicly  burned  and 
tortured.  When  the  President,  contrary  to  law,  deprives 
167  men  of  their  livelihood  and  their  right  to  employment 
by  the  national  government,  he  sets  a  dangerous  exam- 
ple to  every  person  in  the  land. 

Like  usurpations  have  been  numerous.     Let  us,  how- 
ever, observe  one  more.    The  constructive  recess  of  three 
years  ago  was  conceived  by  the  President  to  permit  the 
'  North  American  Review,  January  18,  1907,  p.  217. 


EXECUTIVE    USURPATION  119 

retention  in  office  of  certain  officials  to  whom  it  was  be- 
lieved the  Senate  was  opposed.  This  recess  lasted  only 
from  the  falling  of  the  gavel  in  the  hands  of  the  Presi- 
dent of  the  Senate,  marking  the  close  of  the  first  session 
of  the  Fifty-eighth  Congress,  and  the  rapping  to  order 
which  immediately  followed  the  opening  of  the  second 
session  of  the  Fifty-eighth  Congress.  And  it  is  to  be 
remembered  that  the  House  of  Representatives  attempted 
to  recognize  this  as  a  real  recess  by  voti:!g  to  themselves 
$190,000  mileage  for  attendance  on  the  second  session 
of  the  Fifty-eighth  Congress. 

What  excuses  are  oflfered  for  these  usurpations? 
Simply  that  the  President  thought  such  usurpations  were 
for  the  welfare  of  the  American  people.  Good  intentions 
never  justify  usurpations  of  law.  Tiberius  Gracchus, 
conscious  that  his  tribuneship  had  been  of  great  value 
to  the  Roman  people,  and  believing  that  the  tribune 
who  would  succeed  him  could  not  be  relied  on  to  carry 
on  his  policy,  offered  himself,  notwithstanding  the  law 
forbade  it,  to  the  Comitia  for  reelection.  He  reasoned 
just  as  our  President  reasons,  that  his  tribuneship  had 
brought  great  blessings  to  the  Roman  people ;  that  the 
poor  needed  his  protection  ;  that  the  interests  of  the  coun- 
try demanded  his  reelection,  and  that  to  break  the  law 
for  a  good  cause  could  be  atoned  for  by  the  fruits  of  his 
administration  for  the  second  year.  Noble  as  were  his 
purposes,  beneficial  as  might  have  been  his  rule,  his  ille- 
gal act  resulted  in  armed  resistance,  and  he  and  three 
hundred  of  his  friends  were  killed  at  the  polls  and  their 
bodies  flung  into  the  Tiber.  The  Constitution  was  given 
us  as  a  guide  of  our  action.    It  is  beyond  the  ingenuity 


I20  FEDERAL    USURPATION 

of  man  to  invent  a  justification  for  its  violation.  The 
example  of  a  President  obeying  its  mandates  would  con- 
tribute a  thousandfold  more  to  the  general  good  than 
ever  can  come  from  any  supposed  benefit  in  its  violation. 
When  it  was  moved  in  the  Constitutional  Convention 
that  a  single  person  should  act  as  the  executive  of  the 
nation,  a  profound  silence  followed,  continuing  for  sev- 
eral minutes,  until  Washington,  the  presiding  officer, 
asked  what  was  the  further  pleasure  of  the  Convention. 
In  the  conventions  called  for  the  adoption  of  the  Con- 
stitution in  all  of  the  Southern  States  and  in  Massachu- 
setts and  New  York,  much  alarm  was  expressed  at  the 
powers  of  the  President  and  the  danger  of  his  perpetu- 
ating himself  in  office.  Little  did  the  people  at  that  time 
contemplate  that  such  vast  power  would  attach  to  the 
office  by  reason  of  the  growth  in  size  of  our  country,  its 
rapid  industrial  advancement,  and  its  enormous  increase 
in  wealth.  The  precedent  of  Washington,  followed  by 
his  successors,  of  refusing  to  accept  the  office  for  a 
third  term,  has  made  it  unwise,  if  not  practically  impos- 
sible, for  the  President  to  seek  it.  But  the  all-sufficient 
reasons  which  preclude  the  President  himself  from  seek- 
ing a  third  term,  equally  preclude  his  use  of  the  great 
power  of  his  office  to  bring  about  the  nomination  of  any 
certain  person  as  his  successor.  Jackson,  to  his  discredit, 
dictated  his  successor  as  arbitrarily  as  he  settled  the  ques- 
tion of  the  national  bank.  If  it  is  permissible  for  the 
President  to  seek  to  control  the  nomination  of  his  suc- 
cessor, then  he  can  bring  about  the  nomination  in  his 
party  of  the  man  he  prefers,  and  thus  perpetuate  his  rule, 
although  he  has  ceased  to  act  as  President. 


EXECUTIVE    USURPATION  12I 

The  Roman  law  wisely  provided  that  no  one  should 
be  a  candidate  for  the  Consulship  unless  he  presented 
himself  for  the  office  from  a  private  station  in  life.  If 
the  President  is  determined  to  select  his  successor,  he 
has  only  to  appoint  him  to  a  cabinet  position  of  great 
power,  and  to  vest  him  with  patronage  and  influence, 
to  make  him  an  overmatch  for  any  man  aspiring  to  the 
office  from  private  life.  If  the  unwritten  law  of  the  land 
precludes  a  President  from  continuing  in  the  office  be- 
yond two  terms,  let  us  make  it  also  the  unwritten  law 
that  the  occupant  of  that  high  office  shall  not  use  the 
almost  omnipotent  power  which  he  holds  from  the  people 
in  any  manner  whatever  to  select  his  successor.  In  short, 
let  the  American  people  insist  that  the  exalted  office  of 
the  President  shall  lift  him  far  above  the  use  of  his  power 
to  place  any  man  in  the  presidential  chair,  or  to  obstruct 
any  man  from  seeking  that  exalted  position  from  the 
walks  of  private  life. 


IV 
PATERNALISM    AND    IMPERIALISM 


N 


"The  French  government  having  assumed  the  place  of 
Providence,  it  was  natural  that  everyone  should  invoke  its 
aid  in  his  individual  necessities." 

De  Tocqueville. 


"The  mischief  begins  when,  instead  of  calling  forth  the  activ- 
ity and  powers  of  individuals  and  bodies,  government  substi- 
tutes its  own  activity  for  theirs;  when,  instead  of  informing, 
advising,  and,  upon  occasion,  denouncing,  it  makes  them  work 
in  fetters,  or  bids  them  stand  aside  and  does  their  work  instead 
of  them.  The  worth  of  a  State,  in  the  long  run,  is  the  worth  of 
the  individuals  composing  it." 

John  Stuart  Mill. 


"Foreign  politics  recede  into  the  background  with  the  growth 
of  civil  and  political  freedom,  while  they  are  the  main  prop  of 
autocracies." 

Anon. 


CHAPTER   IV 

PATERNALISM    AND   IMPERIALISM 

The  public  newspapers  a  few  months  ago  told  the 
people  of  the  country  that  a  delegation  from  the  New 
York  Federation  of  Churches  had  that  day  called  at  the 
White  House  to  lay  before  the  President  the  facts  about 
the  waning  of  religious  zeal  and  the  decrease  of  church 
extension  in  New  York.  They  desired  the  President's 
"  aid  toward  arousing  greater  interest  in  religion."  In 
the  days  of  the  birth  of  the  Constitution  the  fathers 
lifted  their  thoughts  to  Heaven  and  to  God  for  religious 
help,  and  they  hardly  anticipated  a  time  when  the  Presi- 
dent, for  whose  election  they  were  providing,  would  be 
looked  to  by  the  American  people  for  religious  guid- 
ance. Noble  Robert  Collier  was  wont  to  tell  the  story 
of  an  old  clergyman  in  Scotland  who,  when  the  scorners 
gathered  around  the  church  while  services  were  going 
on,  would  leave  the  pulpit,  catch  the  unrepentant  sin- 
ners, and  drag  them  before  the  altar  of  mercy.  Perhaps 
the  delegation  from  the  New  York  Federation  of 
Churches  hoped  that  the  President  with  his  "  big  stick  " 
would  compel  the  people  to  attend  church. 

The  value  of  this  simple  and  trifling  incident  is  found 
in  that  it  is  a  typical  illustration  of  the  unfortunate  con- 
dition of  our  people.    Labor  Unions,  Boards  of  Trade, 

"5 


126  FEDERAL    USURPATION 

National  Banks,  and  like  bodies  are  constantly  turning 
to  the  President  of  the  United  States,  asking  him  to 
arbitrate  strikes,  coerce  corporations,  and  deposit  gov- 
ernment surplus,  and  generally  to  carry  on  the  domestic 
affairs  of  the  states.  The  present  Secretary  of  the 
Treasury  has  deposited  upward  of  $200,000,000  of  the 
surplus  of  the  government  with  the  banks,  issued  $50,- 
000,000  of  three  per  cent  certificates,  and  sold  them  to 
aid  the  banks,  under  the  law  that  they  may  be  issued 
when  necessary  to  meet  public  expenditures,  and  sold 
$50,000,000  of  the  Panama  bonds  in  advance  of  the  need 
of  the  money,  in  order  to  relieve  the  money  stringency. 
In  the  spring  of  1907  we  saw  the  strange  spectacle  of 
presidents  of  railways  hastening  to  Washington  to  in- 
voke the  President  to  protect  them  from  state  legisla- 
tion. A  commission  known  as  the  Keep  Commission 
recently  has  reported  a  plan  to  be  submitted  to  Con- 
gress, providing  that  the  government  shall  compel  all 
its  employees  to  make  provision  out  of  their  salaries  for 
annuities  after  retirement  for  age.  The  government  on 
its  side  is  to  set  aside,  as  part  of  the  same  fund,  the  sum 
of  $725,000  for  the  first  year,  and  this  sum  is  to  be  in- 
creased during  a  period  of  thirty  years,  when  the  system 
is  intended  to  be  self-supporting.  The  maximum  ap- 
propriation is  to  be  $1,746,561.  Wiser  words  were 
never  spoken  than  those  of  President  Cleveland  that  "  it 
is  not  the  business  of  a  government  to  support  its  peo- 
ple, but  of  the  people  to  support  the  government." 

The  peculiar  thing  about  the  condition  of  our  gov- 
ernment to-day  is  that  the  President  is  supposed  by  the 
people  to  determine  everything.    Shall  a  trust  be  prose- 


PATERNALISM   AND    IMPERIALISM  127 

cuted?  Ask  the  President,  not  the  Attorney  General. 
Shall  we  have  further  legislation  with  reference  to  rail- 
ways? Ask  the  President  and  not  Congress.  All  the 
affairs  of  government  must  be  determined  upon  the 
President's  idea.  It  is  simply  a  personal  matter  with  the 
President.  In  a  healthy  democratic  republic,  measures, 
not  men,  attract  the  attention  of  the  people.  But  with 
us,  the  President,  appointing  so  many  officers,  controll- 
ing the  army  and,  to  a  considerable  extent,  the  navy,  is, 
to  use  a  vulgar  phrase,  in  the  center  of  the  stage  with 
all  eyes  upon  him. 

In  Switzerland,  the  most  democratic  government  in 
the  world,  a  President  of  the  Confederation  is  reported 
as  once  saying  that  if  anyone  were  to  question  ten  Swiss, 
all  of  them  would  know  whether  their  country  was  well 
governed  or  not,  but  that  nine  of  them  would  not  be 
able  to  give  the  name  of  the  President,  and  the  tenth, 
who  might  think  he  knew  it,  would  be  mistaken.^  When 
will  the  American  people  learn  that  an  all-powerful 
executive,  constantly  posing  before  them,  toying  gigan- 
tic schemes  in  their  sight,  dazzling  them  with  his  power 
and  the  grandeur  of  his  views,  keeping  their  attention 
upon  the  world's  politics,  using  the  navy  to  collect  from 
the  weaker  and  smaller  countries  their  indebtedness  to 
European  countries,  advising  his  own  people  upon  their 
domestic  and  social  questions,  is  a  menace  to  that  lib- 
erty which  never  can  continue  unless  it  continues  by 
reason  of  discussion  of  measures,  not  men.  By  too  much 
trust   in  government   the   people  are  ceasing  to  trust 

>  Lowell,  Government  and  Parties  in  Cont.  Europe,  vol. 
II,  p.  327. 


128  FEDERAL    USURPATION 

themselves.  The  state  cannot  aid  men  without  en- 
feebling their  energies  and  imperiling  their  self-reliance. 
Such  a  condition  goes  on  for  a  century  or  so,  and  by  and 
by  the  people,  who  gradually  have  been  losing  independ- 
ence and  self-initiative,  become  an  easy  prey  to  the 
man  on  horseback. 

Now  let  us  see  how  these  lamentable  conditions  have 
been  brought  about.  In  more  than  200  addresses 
and  messages  and  communications  to  Congress,  dur- 
ing the  last  six  years,  the  President  has  ever  been 
holding  before  the  people  the  one  great  theme — the 
power,  the  ability,  and  the  willingness  of  the  chief  mag- 
istrate and  of  the  national  government  to  care  for  all  the 
wants  of  the  people.  There  is  no  subject,  from  foot- 
ball to  race  suicide,  from  simplified  spelling  to  Consti- 
tutional construction,  within  the  whole  scope  of  human 
knowledge  which  has  not  been  exploited  more  or  less 
and  held  up  to  the  people  in  these  speeches  and  mes- 
sages. 

At  Sioux  Falls,  on  April  6,  1903,  the  President  tells 
his  audience  "  that  the  Department  of  Agriculture  de- 
votes its  whole  energy  to  working  for  the  welfare  of 
farmers  and  stock  growers,"  and  then  he  enumerates 
the  various  ways  in  which  the  Department  is  working 
for  the  benefit  of  the  farmers  of  the  country.  It  was 
proposed  in  the  Constitutional  Convention  to  appoint  a 
Secretary  of  Domestic  Aflfairs  who  should  attend  to  the 
study  of  agriculture  and  manufactures,  and  the  opening 
of  roads,  but  this  was  not  approved.^  It  was  also  pro- 
posed to  establish  agricultural  colleges  to  promote  agri- 
»  Elliot's  Deb.,  vol.  v,  p.  446. 


PATERNALISM   AND    IMPERIALISM  129 

culture,  and  this  proposition  was  voted  down.  Notwith- 
standing this,  hundreds  of  milUons  of  the  people's 
money  have  been  used  for  the  ostensible  purpose  of  pro- 
moting agriculture.  For  years  Congress  has  been  pur- 
chasing seeds  at  ordinary  seed  stores  and  scattering 
them  among  the  farmers  of  the  country.  During  Presi- 
dent Cleveland's  second  administration,  Stirling  G. 
Morton,  Secretary  of  the  Department  of  Agriculture, 
attempted  to  put  a  stop  to  this,  and  a  representative  from 
Louisiana  arose  in  the  House  and  declared  that  the  dis- 
tribution of  seed  was  the  only  relation  left  him  with  his 
constituents,  and  now  the  Secretary  of  Agriculture  was 
about  to  destroy  that  relationship. 

In  the  President's  message  of  December,  1906,  he 
assures  the  people  that  "  much  is  now  being  done  for 
the  States  of  the  Rocky  Mountains  and  great  plains 
through  the  development  of  the  national  policy  of  irri- 
gation and  forest  preservation,"  In  a  recent  case  ^  it  is 
distinctly  held  that  Congress  has  no  power  to  devote 
the  public  money  for  carrying  on  irrigation  in  the 
states,  but  that  possibly  the  power  exists  to  devote  the 
public  money  to  the  irrigation  of  public  lands  in  the 
territories.  The  irrigation  laws,  the  geological  survey, 
the  ten  or  fifteen  divisions  of  the  Agricultural  De- 
partment given  over  to  investigations  of  all  kinds,  using 
up  hundreds  of  millions  of  dollars  of  the  people's  money, 
induce  the  people  to  look  to  the  national  government. 
These  lavish  appropriations  are  made  with  this  express 
purpose  in  view.  Every  appropriation  is  a  fresh  draft 
from  the   exhaustless  resources   of   a   paternal  govern- 

>  Kansas  v.  Colorado,  206  U.  S.,  91,  92. 
10 


I30 


FEDERAL   USURPATION 


ment,  but  not  a  dollar  was  ever  yet  spent  by  the  govern- 
ment which  was  not  taken  out  of  the  pockets  of  the 
people.  The  appropriations  of  Congress  in  the  year 
1898  were  $485,002,044;  in  1906  they  were  $820,184,- 
624,  nearly  double  the  amount  for  1898;  and  in  1907 
they  were  about  a  billion  dollars.  In  the  year  1907 
there  was  appropriated  by  the  River  and  Harbor  Bill 
alone,  $83,816,138,  a  sum  larger  than  the  total  cost  of 
all  government  in  the  United  States  in  any  single  year 
prior  to  i860. 

In  the  President's  message  in  December,  1906,  he 
devoted  much  attention  to  technical  and  industrial 
training,  treating  the  whole  matter  as  though  the  na- 
tional government  had  power  to  establish  schools  in 
the  different  states,  to  instruct  carpenters,  blacksmiths, 
mechanics,  textile  workers,  watchmakers,  and  all  the 
members  of  the  several  industries  of  the  country.  Mr. 
Wadsworth,  Chairman  of  the  Committee  on  Agricul- 
ture, in  the  last  Congress  commented  at  length  upon 
the  tendency  of  the  Department  of  Agriculture  to  usurp 
the  powers  of  the  state  governments.  The  occasion  of 
his  speech  was  the  consideration  of  what  was  known  as 
the  Nelson  Amendment  increasing  the  agricultural  ap- 
propriations. Mr.  Wadsworth  said  that  the  agricultural 
appropriations  as  a  whole  presented  a  serious  menace  to 
local  control  of  education;  that  they  included  bills  to 
extend  aid  to  state  normal  schools,  agricultural  schools, 
mechanical  schools,  and  city  high  schools ;  and  that  if 
appropriations  were  made  for  such  purposes  by  and  by 
they  would  be  extended  to  the  grade  schools  and  then 
"  you  will  have  federal  control  and  supervision  of  your 


PATERNALISM    AND    IMPERIALISM  131 

schools."  Mr.  Tawney,  Chairman  of  the  Committee  on 
Appropriations,  said :  "  If  we  continue  this  system  of 
paternahsm  much  longer  it  will  not  be  long  until  the 
Congress  will  be  swept  oflF  its  feet  and  called  on  to  ac- 
count for  from  $25,000,000  to  $50,000,000  annually  for 
the  construction  and  maintenance  of  good  roads." 

The  late  Secretary  of  the  Treasury,  Leslie  M.  Shaw, 
for  the  purpose  of  aiding  the  national  banks,  allowed 
bonds  other  than  government  bonds  as  prescribed  by 
the  statute  to  be  used  to  secure  circulation ;  purchased 
bonds  in  advance  of  their  becoming  due  with  the  intent 
of  easing  the  money  market ;  and  deposited  the  moneys 
received  by  the  government  for  internal  revenue,  to  the 
amount  of  $20,000,000,  with  the  banks  in  the  east  and 
in  the  west,  after  it  had  been  taken  into  the  Treasury 
vaults,  a  power  never  exercised  before  by  any  Secretary. 
He  also  deposited  the  government  moneys  with  im- 
porting banks,  during  the  transit  of  gold  from  London, 
Paris,  Berlin,  and  Amsterdam,  to  save  the  cost  of  inter- 
est in  transit ;  offered  government  deposits  to  banks 
which  would  buy  the  Panama  Canal  bonds  at  two  per 
cent ;  deposited  the  Treasury  surplus  from  time  to  time 
in  different  banks  to  ease  the  money  market;  advised 
that  the  matter  of  the  amount  of  the  reserves  required 
by  law  to  be  held  in  the  national  banks  be  left  for  the 
Secretary  of  the  Treasury  to  determine ;  and  finally  an- 
nounced that  if  $100,000,000  were  given  him  as  Sec- 
retary of  the  Treasury  to  be  deposited  with  the 
banks  or  withdrawn  as  he  might  deem  expedient,  and 
that  if  he  also  was  clothed  with  authority  over  the  re- 
serves of  the  banks  and  power  to  direct  the  circulation 


132  FEDERAL    USURPATION 

of  the  national  banks,  he  could  prevent  financial  crises 
in  the  United  States  and  all  Europe,  thus  becoming  the 
saviour  of  Europe  as  well  as  of  the  United  States.  The 
President,  in  commendation  of  the  services  of  his  Sec- 
retary of  the  Treasury,  at  the  time  of  his  resignation, 
wrote  him :  "  People  tend  to  forget  year  by  year  that 
the  Secretary  of  the  Treasury  stands  between  them  and 
business  disaster.  This  report  of  yours  shows  how 
every  year  some  crisis  has  occurred  which  might  have 
had  a  most  serious  effect  if  it  had  not  been  met  just  as 
you  have  met  it." 

These  are  only  a  few  of  the  attempts  of  the  gov- 
ernment to  direct  the  attention  of  the  people  to  it  for 
the  remedy  of  every  evil.  The  Treasury  of  the  United 
States  has  been  opened  wide  by  distributing  money  into 
every  part  of  the  country  for  purposes  with  which  the 
national  government  has  nothing  to  do,  with  the  inten- 
tion of  directing  the  attention  of  the  people  to  the  all- 
wise  providence  of  Congress  and  of  the  Executive.  A 
hundred  years  ago  our  people  asked  no  favors  from 
government,  but  only  for  a  fair,  square  deal,  each  man 
confident  in  his  ability  to  win  by  his  own  brain  and  his 
own  hand.  To-day,  under  this  paternal  rule,  everybody 
is  in  the  habit  of  looking  to  the  President  and  Congress 
for  relief  from  every  evil.  Thus  residents  in  the  south- 
ern states  recently  sent  a  request  to  the  Secretary  of 
the  Department  of  Agriculture  that  he  rid  them  of  the 
pest  of  the  boll  weevil,  while  the  men  of  old  Massachu- 
setts, wherein  personal  independence  in  revolutionary 
days  was  most  developed,  send  to  Washington  for  help 
to  drive  the  brown-tailed  or  gypsy  moth  from  the  bor- 


PATERNALISM  AND   IMPERIALISM 


^33 


ders  of  their  State.  Just  as  at  Rome,  the  leading  men 
desiring  the  plaudits  of  the  people  provided  them  with 
a  circus,  just  as  Caius  Gracchus  proposed  a  provision 
that  the  grain  at  Rome  should  become  state  property, 
and  that  the  government  should  sell  wheat  to  the 
people  at  a  ridiculously  low  price,  so  to-day  President 
Roosevelt  and  some  of  his  predecessors  have  used  vast 
sums  of  money  collected  from  the  people  through  pro- 
tective tariffs,  internal  revenue,  and  other  means  to  be- 
stow bounties  here  and  there  all  over  the  land,  and  thus 
attach  the  people  of  the  different  states  to  the  all-pow- 
erful, all-bounteous  providential  national  government. 

Now  such  government  is  destructive  of  public  vir- 
tue. The  function  of  democracy  is  not  alone  to  make 
government  good,  but  to  make  men  strong  by  intensi- 
fying their  individual  responsibility.  The  belief  that  the 
President  or  government  has  the  power  to  make  every- 
body comfortable  or  happy,  and  the  inclination  of  the 
people  to  depend  upon  our  government  as  the  people 
of  France  and  Germany  depend  upon  theirs,  is  a  tend- 
ency destructive  of  liberty  and  individual  initiative. 
Paternalism  is  the  dry  rot  of  government,  and  as  surely 
brings  paralysis  through  all  its  members  as  the  law  of 
gravitation  controls  the  universe. 

But  even  these  are  not  the  worst  evils  of  paternal- 
ism. The  greatest  curse  which  it  has  brought  upon  the 
country  is  its  teaching  that  all  evils  are  political  in 
nature,  and  that  it  is  within  the  scope  of  the  state  to 
destroy  the  social  miseries  which  inevitably  exist.  We 
are  teaching  the  people  that  a  law  of  Congress  is  a  sov- 
ereign specific   for  every  evil.     The  President  of  the 


134  FEDERAL   USURPATION 

United  States  is  constantly  calling  to  the  attention  of 
the  people  in  his  messages  and  speeches  the  benefits  to 
be  derived  from  new  laws,  yet  every  student  of  history 
knows  that  better  conditions  cannot  be  brought  about 
except  through  a  change  in  the  personal  character  of 
the  people  and  their  exercise  of  individual  virtue  and 
vigor.  The  exercise  of  arbitrary  power  by  the  Presi- 
dent is  bad  because  arbitrary  power,  whether  it  be  po- 
litical or  industrial,  has  always  had  but  one  tendency, 
and  that  is  to  make  good  citizens  bad  citizens.  The 
citizens  who  are  contented  to  rely  upon  a  paternal  gov- 
ernment never  rise  through  one  emancipation  after  an- 
other into  a  higher  liberty.  Social  evolution  progresses 
actually  with  the  importance  of  the  citizen  above  the 
state,  and  decreases  exactly  in  the  proportion  of  the 
importance  of  the  state  over  the  citizen.  A  good  des- 
potism is  an  absolutely  false  idea.  The  more  civilized 
the  country,  the  more  noxious  such  a  government. 

The  people  must  fight  their  own  battles  for  better 
conditions.  Every  time  they  call  upon  that  great  cen- 
tral deity,  the  Government,  to  fight  an  evil,  they  sur- 
render their  God-given  right  to  grow  strong  by  fighting 
it  themselves.  By  and  by,  if  recent  tendencies  con- 
tinue, they  will  surrender  all  their  duties  and  all  their 
rights,  so  dearly  bought,  to  their  rulers.  By  and  by 
the  government,  like  that  of  Germany,  will  dog  the  citi- 
zen's footsteps  at  every  turn,  provide  him  with  old- 
age  pensions,  recompense  him  for  all  injuries  received 
through  negligence,  destroy  his  manhood  while  alive, 
and  bury  him  when  dead.  Let  us  go  on  at  the  same 
rate  we  have  been  during  the  last  five  years,  and  the 


PATERNALISM   AND    IMPERIALISM  135 

sole  idea  of  our  country  will  be  a  divinely  inspired 
President  whose  authority,  as  guardian  of  the  people, 
insures  their  general  felicity.  This  evolution  will  con- 
sist in  erecting  an  absolutely  central  power  over  the 
ruins  of  state  and  local  life.  All  will  be  looking  to 
Congress  more  and  more  for  the  righting  of  wrongs, 
for  the  control  of  commerce  and  industry,  and  for  the 
curbing  of  the  predatory  railways  and  trusts.  The 
command  of  the  people  to  the  President  will  be  the 
command  to  the  Roman  dictator  to  take  care  that  the 
state  receives  no  harm,  leaving  the  means  and  the 
methods  entirely  to  his  wise  discretion.  Then  when  evil 
conditions  come,  as  they  came  recently  to  the  wine 
growers  in  the  south  of  France,  through  perfectly  natu- 
ral causes,  our  people  in  vain  will  turn  their  faces 
to  the  government  to  relieve  them  even  as  the  French 
peasants  sought  government  aid,  and  then  rose  in 
arms  against  a  government  that  could  find  no  cure  for 
their  ills. 

Upon  no  subject  has  the  President  spoken  with  so 
much  power  as  upon  the  decadence  which  race  suicide 
is  bringing  upon  the  country.  The  conditions  which 
the  President  laments  are  a  menace  to  our  national  great- 
ness, but  no  amount  of  severe  language  against  married 
people  who  have  no  children  will  avail.  Better  a  hun- 
dred times  to  find  the  reasons  for  race  suicide  and  re- 
move them.  If  the  President  does  not  know  what  those 
reasons  are  he  has  not  carefully  reflected  upon  existing 
conditions.  The  high  price  of  the  necessaries  of  life, 
whereby  a  large  part  of  our  people  are  reduced  to  a  con- 
dition where  the  daily  wage  barely  supports  the  family, 


136  FEDERAL    USURPATION 

more  than  any  other  cause  brings  the  condition  which 
the  President  so  wisely  laments.  The  masses  of  men 
will  be  what  their  circumstances  make  them.  If  the  pres- 
ent prices  of  the  necessaries  of  life  and  of  rent  con- 
tinue, the  average  laboring  man  with  a  family  will  be 
unable  from  his  wages  to  support  his  family  and  to  lay 
aside  a  dollar  for  his  old  age.  He  pays  for  the  rent  of 
the  tenement  in  which  he  lives  from  twenty-five  to  fifty 
per  cent  more  than  he  would  pay  for  it  were  it  not  for 
the  customs  duties  upon  iron  and  steel,  wood,  nails,  glass, 
cement,  and  everything  that  goes  into  the  making  of 
that  tenement,  whereby  the  domestic  manufacturer  is 
protected  from  foreign  trade  and  allowed  to  deprive  the 
poor  man  of  his  scanty  earnings. 

The  tariff  schedules  of  to-day  carry  duty  on  more 
than  4,000  articles.  Nearly  every  duty  on  these  4,000 
articles  permits  the  domestic  producer  of  the  same 
article  to  impose  a  higher  price  for  his  product,  and 
that  price  eventually  falls  in  greater  part  upon  the  shoul- 
ders of  the  poor  and  deters  them  from  marriage  and 
childbirth.  Superintendent  Maxwell,  of  the  New  York 
City  schools,  two  or  three  years  ago  said :  "  There  are 
thousands  of  children  in  our  city  schools  who  cannot 
learn  because  they  are  hungry."  And  they  are  hungry, 
in  part  at  least,  because  of  that  protective  tariff  which 
allows  the  wealth  of  the  country  to  make  every  poor 
laboring  man  in  this  land  pay  tribute  to  increase  its 
wealth.  In  1,000  villages  and  cities,  from  one  end 
of  this  country  to  the  other,  the  wife  of  the  poor  man 
will  be  found  in  the  market,  the  hard  earnings  of  her 
husband  in  her  gnarled  hands,  purchasing  the  necessaries 


PATERNALISM   AND    IMPERIALISM  137 

of  life;  and  from  every  dollar's  worth  she  buys,  she  is 
obliged,  because  of  the  tariff,  to  make  a  personal  con- 
tribution to  men  who  already  have  their  millions.  In 
the  fifty  years  since  the  end  of  the  Civil  War,  the  pro- 
tective tariff  has  brought  to  the  hands  of  a  few  thousand 
manufacturers  more  wealth  than  was  acquired  by  the 
French  nobles  through  privilege  in  five  hundred  years 
prior  to  the  revolution.  In  the  President's  Jamestown 
speech  he  said :  "  We  combat  every  tendency  toward  re- 
ducing the  people  toward  economic  servitude."  The  way 
to  combat  it  effectually  is  to  remove  the  tariff  which  re- 
duces the  poor  to  economic  servitude  to  the  trusts.  So 
reduced  have  the  people  become,  that  one  has  but  to  ob- 
serve their  condition  closely  each  day  in  the  crowded 
cars  and  thoroughfares  of  New  York  City  to  see  that 
they  are  losing  their  faith  in  the  opportunity  to  improve 
their  condition  and  their  courage  to  battle  against  the 
odds  of  life.  Vitiated  air,  bad  sanitation,  and  squalid 
homes  drive  them  forth  to  the  cheerfulness  of  the  saloon, 
and,  by  and  by,  if  a  crisis  comes,  impel  them  to  the  com- 
mission of  crimes. 

A  few  months  ago  the  J.  &  P.  Coats  Co.,  Ltd.,  thread 
manufacturers,  declared  a  large  dividend  upon  their 
capital  of  $15,000,000.  This  is  a  foreign  corporation 
owned  at  Paisley,  Scotland,  but  doing  business  in  this 
country  to  take  advantage  of  our  tariff.  Its  stock, 
which  is  $50  per  share,  had  a  market  value  of 
$677.50  at  the  time  this  dividend  was  declared.  The 
tariff  duty  upon  sewing  thread  is  six  cents  per  dozen 
spools  of  100  yards  each.  Race  suicide,  as  a  de- 
plorable condition  in  our  country  to-day,   is  explained 


138  FEDERAL    USURPATION 

by  such  instances  as  the  sewing  woman ;  robbed  by  the 
high  price  of  the  necessaries  of  hfe,  with  a  burden  upon 
the  cost  of  her  thread,  driven  by  desperate  competition, 
she  succumbs  under  all  this  stress  and  strain.  This  in- 
creased cost  of  living  is  a  merciless  drain  upon  the  whole 
body  of  poor  people.  Robbed  of  their  earnings  by  the 
monopolist,  the  unmarried  do  not  marry,  and  the  married 
do  not  bring  children  into  the  world,  and  the  problem 
exists.  Alexander  Hamilton  well  said :  "  Give  a  man 
power  over  my  subsistence  and  he  has  power  over  the 
whole  of  my  moral  being."  Government  to-day  gives 
to  a  few  thousands  the  power  over  the  subsistence  of 
every  one  of  the  20,0(X)  post-office  clerks  whose  salar- 
ies run  from  $600  to  $1,000  a  year,  of  all  other  clerks 
in  the  employ  of  the  government  on  fixed  salaries,  and 
of  every  one  of  the  millions  of  clerks  upon  fixed  sal- 
aries in  stores  and  business  concerns  in  the  entire  coun- 
try. And  the  result  is  race  suicide,  because  we  have 
reached  a  time  in  this  country  when  a  great  portion  of 
the  people  are  unable  to  support  a  considerable  family 
in  the  style  they  desire. 

Yet  the  President,  who  deplores  race  suicide,  a  few 
years  ago  said :  "  Our  experience  as  a  people  in  the  past 
has  certainly  not  shown  us  that  we  could  afford  in  this 
matter  (of  the  tariff)  to  follow  those  professional  coun- 
selors who  have  confined  themselves  to  study  in  the  closet, 
for  the  actual  working  of  the  tariff  has  emphatically 
contradicted  their  theories."  Of  one  of  those  profes- 
sional counselors  who  confined  himself,  in  great  part  at 
least,  to  study  "  in  the  closet,"  Mr.  Buckle,  in  his  world- 
wide known  "  History  of  Civilization  in  England,"  speak- 


PATERNALISM   AND    IMPERIALISM  139 

ing  of  the  "  Wealth  of  Nations,"  and  summing  up  his 
estimate  of  the  book,  says :  "  Well  may  it  be  said  of  Adam 
Smith,  and  said,  too,  without  fear  of  contradiction,  that 
this  solitary  Scotchman  has,  by  the  publication  of  one 
single  work,  contributed  more  toward  the  happiness  of 
man  than  has  been  eflFected  by  the  united  abilities  of  all 
the  statesmen  and  legislators  of  whom  history  has  pre- 
served an  authentic  account."  With  the  growth  of  the 
protective  tariff,  those  who  have  watched  public  affairs 
with  care  can  observe  the  waning  of  the  old-time  demo- 
cratic simplicity  in  government,  and  can  see  its  place 
being  taken  by  rapid  centralization  of  power  and  growth 
of  paternalism  in  the  general  government.  High  pro- 
tection, militarism,  and  paternalism  have  been  advancing 
hand  in  hand  since  the  Civil  War. 

Immediately  after  the  announcement  of  the  nomina- 
tion of  Mr.  McKinley  at  the  Republican  National  Con- 
vention at  St.  Louis,  in  1896,  a  delegate  raised  upon 
the  point  of  a  flagstaff  a  cocked  hat,  such  as  one  asso- 
ciates with  portraits  of  Napoleon,  and  the  Convention 
cheered  to  the  echo  this  Napoleonic  emblem.  Little  did 
the  delegates  think  that  during  the  administration  of  Mr. 
McKinley  would  occur  a  war  and  the  acquisition  of  ter- 
ritory, containing  over  10,000,000  of  people,  in  a  dis- 
tant part  of  the  world,  and  that  changes  would  come 
in  the  form  of  our  government,  leading  to  new  habits, 
modes  of  thought,  and  conditions  of  life  among  the  peo- 
ple which  are  inconsistent  with  a  free  democratic  repub- 
lic. We  need  spend  little  time  in  discussing  the  facts 
and  conditions  of  our  getting  possession  of  our  different 
colonies.     We  have  them,  and  it  is  well  for  us  now  to 


I40  FEDERAL   USURPATION 

study  how  these  new  conditions  will  affect  our  home  in- 
stitutions. 

A  republican  form  of  government  based  upon  a  writ- 
ten constitution  cannot  exist  where  the  republic  is  the 
sovereign  of  widely  scattered  colonies.  The  tendencies 
to  usurpation  from  imperialism  are  so  great  as  necessarily 
to  break  down  the  guarantees  to  liberty  found  in  the 
written  Constitution.  The  Philippine  Islands  became  the 
property  of  the  United  States  April  ii,  1899,  and  it  was 
190 1  before  Congress  took  them  into  its  charge.  During 
all  this  period  these  Islands  were  governed  by  the  Presi- 
dent simply  as  the  Czar  might  govern  Siberia,  or  as  the 
German  Emperor  did  govern  Alsace-Lorraine  for  some 
years  after  the  Franco-German  war.  He  not  only  exe- 
cuted the  laws,  but  he  made  new  ones.  Without  any  au- 
thority from  Congress  he  sent  to  the  Philippines  a  Com- 
mission of  five  men  who  legislated  for  them  and  reported 
their  laws  to  the  President  through  the  Secretary  of 
War.  Before  the  transfer  by  the  treaty  the  President 
governed  as  military  commander,  but  after  the  Philip- 
pines had  become  domestic  territory,  he  ruled  without 
any  authority  whatever.  Even  if  Congress  had  attempted 
to  delegate  the  power  to  the  President  to  govern  the  Phil- 
ippines, there  is  grave  doubt  if  any  power  exists  under 
the  Constitution  to  permanently  rule  colonies  as  subject 
people. 

Even  after  Congress  assumed  charge  of  the  Philip- 
pines the  government  continued  a  mere  despotism. 
Shortly  after  Mr.  Root  resigned  his  position  as  Secretary 
of  War,  and  in  the  early  part  of  1904,  at  a  banquet  of 
the  New   York  University   Law   School,   he  said :   "  It 


PATERNALISM   AND    IMPERIALISM  141 

has  been  my  province  during  the  last  four  years  and  a 
half  to  deal  with  arbitrary  government.  It  has  been 
necessary  for  me  not  only  to  make  laws  and  pronounce 
judgment  without  any  occasion  for  discussion — except 
in  as  far  as  I  would  choose  to  weigh  the  question  in- 
volved in  my  own  mind — affecting  10,000,000  people. 
And  not  only  to  make  laws  and  pronounce  judgment, 
but  to  execute  judgment  with  overwhelming  force  and 
great  swiftness."  Here  Mr.  Root  well  describes  the 
government  of  the  Czar,  the  government  of  Germany  and 
Belgium  in  Central  and  South  Africa,  the  government 
necessarily  of  all  countries  which  rule  subject  provinces. 
How  would  our  own  people  be  ruled  at  home  if  they 
knew  no  more  about  their  own  affairs  than  they  know 
or  care  about  the  affairs  of  the  Philippines  ? 

When  it  was  known  that  the  Treaty  of  Paris  provided 
for  the  taking  over  of  the  Philippines  at  a  cost  of 
$20,000,000,  many  of  those  who  were  opposed  to 
the  treaty  declared  that  the  Philippines  were  of  little 
value  and  would  be  a  curse  to  our  country.  The  action, 
however,  of  our  government  was  acclaimed  by  a  consid- 
erable proportion  of  the  people.  We  have  invested  in 
the  Philippines  up  to  the  present  time  at  least  $1,000,- 
000,000.  And  now  from  every  side  we  hear  thoughtful 
men  asking  that  we  get  rid  of  them,  saying  that  they  are 
a  useless  incumbrance,  saying  that  our  trade  with  them 
has  not  increased,  and  that  no  benefits  will  come  to  the 
country  from  holding  them.  Senator  Raynor,  of  Mary- 
land, recently  speaking  in  New  York,  said :  "  The  Philip- 
pines, I  will  guarantee,  would  not  sell  for  a  dollar  and  a 
half  in  the  market  of  the  world.     Who  wants  them? 


142  FEDERAL    USURPATION 

Where  is  the  bidder  ?  Not  a  nod  of  the  head  will  you  get 
from  the  nations  of  the  world." 

The  important  question  for  the  American  people 
to-day,  however,  is  the  effect  of  our  imperial  system 
upon  our  government.  Sixty  years  ago  William  H. 
Seward  declared  the  great  principle  that  we  could  not 
live  half  slave  and  half  free.  With  equal  truth  it  can  be 
said  to-day  that  we  cannot  deprive  the  people  of  the 
Philippines  or  the  people  of  our  other  colonies  of  their 
liberties,  without  the  self-same  act  destroying  the  safe- 
guards of  our  own.  Imperial  aspirations  draw,  by 
obvious  necessity,  an  imperial  rule.  As  our  govern- 
ment becomes  imperial,  foreign  politics  come  to  the 
front  and  the  growth  of  political  freedom  among 
our  people  goes  to  the  rear.  He  reads  history  to  little 
purpose  who  does  not  find  in  its  teachings  many 
illustrations  of  the  truth  that  a  free  people  cannot  rule 
subject  peoples  and  preserve  their  own  government 
free. 

At  Waukesha,  Wis.,  April  3,  1903.  the  President 
said  to  his  audience :  "  We  cannot  help  playing  the 
part  of  a  great  world  power.  All  we  can  decide  is 
whether  we  will  play  it  well  or  ill."  But  one  of  our 
greatest  jurists  and  at  the  same  time  a  most  ardent  lover 
of  liberty,  Mr.  Justice  Harlan,  of  the  United  States 
Supreme  Court,  speaking  a  few  years  ago,  said :  "  Let 
us  hope  that  this  great  instrument  "  (referring  to  the 
Constitution)  "  which  has  served  so  well,  will  weather 
the  storms  which  the  ambitions  of  certain  men  are  cre- 
ating in  the  effort  to  make  this  country  a  world  power." 
Imperialism    necessarily    brings    to    the    front    politics, 


PATERNALISM   AND    IMPERIALISM  143 

schemes  of  empire,  while  the  ordinary  interests  of  our 
people  will  be  overlooked.  Mr.  Cleveland,  in  his  first 
administration,  carefully  examined  the  private  bills 
which  were  sent  to  him  from  Congress,  and  vetoed  127 
of  them.  Of  these,  124  were  special  pension  bills.  So 
far  as  I  am  able  to  ascertain.  President  Roosevelt,  ab- 
sorbed in  world  politics,  has  found  little,  if  any,  time  to 
examine  bills  and  has  vetoed  only  a  single  bill,  correct- 
ing a  war  record,  during  his  whole  administration.  Per- 
haps I  should  not  speak  with  confidence  upon  this 
matter,  because  he  may  have  vetoed  bills  of  which  no 
public  mention  was  made.  But  at  least  he  has  vetoed 
no  important  measure  and  apparently  has  given  but 
little  attention  to  the  bills  which  came  to  him  from 
Congress. 

Playing  the  part  of  a  world  power — what  does  it 
mean?  It  necessarily  means  the  predominance  of  the 
questions  affecting  foreign  affairs  in  the  politics  of  a 
nation,  and  the  predominance  of  the  questions  of  foreign 
affairs  means  a  weakening  of  party  government,  a 
weakening  of  the  opposition  to  the  party  in  power,  and 
the  strengthening  of  the  executive.  The  party  which 
is  carrying  out  an  imperialistic  policy  always  appeals  to 
the  pride  of  the  people,  to  the  national  spirit,  to  jealousy 
against  other  great  powers,  and  brands  every  man  who 
opposes  the  squandering  of  the  public  money  as  stingy, 
mean,  unpatriotic,  and  a  friend  of  foreigners.  Since  we 
adopted  a  policy  of  imperialism  the  power  of  the  Presi- 
dent of  the  United  States  has  been  increasing  with  leaps 
and  bounds.  Like  the  Kaiser,  who  sent  an  army  under 
Count  Von  Waldersee  to  China  without  consulting  the 


144  FEDERAL    USURPATION 

Reichstag,  the  President  to-day  sends  our  navy  or  army 
in  time  of  peace  anywhere  over  the  world,  on  any 
mission  he  pleases,  without  ever  referring  to  Con- 
gress, 

But  imperialism,  because  of  the  heavy  taxation 
which  it  brings  upon  the  people,  is  the  cause  of  discon- 
tent, of  socialism,  and  all  of  the  evils  that  follow  in  their 
train.  France  commenced  the  building  of  her  colonial 
empire  in  the  eighties.  At  that  time  her  socialist  party 
was  of  little  account.  First  she  invaded  Tunis  in  1881; 
then  Indo-China;  then  Madagascar  and  Dahomey,  and 
finally  the  Fashoda  collision  with  England  occurred  in 
1899.  During  this  period  France  added  subject  territo- 
ries to  her  domain  amounting  to  many  times  her  whole 
area,  but  the  expenditures  of  government  were  enor- 
mous. Increased  burdens  were  put  upon  the  people, 
and  as  the  Hfe  of  the  ordinary  man  became  harder  and 
harder,  socialism  grew  rapidly.  To-day  it  is  sufficiently 
influential  to  practically  control  legislation  in  the  Cham- 
ber of  Deputies.  In  1871  the  socialists  elected  but  three 
members  to  the  Reichstag  in  Germany.  A  few  years 
later  Bismarck  commenced  pushing  his  scheme  of 
planting  German  colonies  in  all  lands.  In  Africa,  in 
China,  in  every  part  of  the  world,  Germany  increased 
its  territory.  To-day  the  socialists  number  in  the 
neighborhood  of  3,500,000  voters  and  have  a  large 
number  of  delegates  in  the  Reichstag.  In  1892  the 
socialists  polled  about  27,000  votes  in  Italy.  Crispi, 
as  the  Prime  Minister  of  Italy,  commenced  at  that  time 
to  carry  out  his  policy  of  imperialism,  and  with  the 
growth  of  that  policy  socialism  has  grown,  until  to-day 


PATERNALISM   AND    IMPERIALISM  145 

it  has  a  large  representation  in  the  popular  chamber  of 
the  legislature.^ 

Since  we  have  become  a  world  power,  as  described 
by  President  Roosevelt,  the  characteristic  conditions  of 
imperialism  have  been  appearing  in  our  own  country. 
Sir  Henry  Campbell-Bannerman,  a  master  observer  of 
events  in  England,  a  few  years  ago  described  the  charac- 
teristics of  imperialism,  and  the  description  fits  perfectly 
the  conditions  which  are  seen  everywhere  in  this  coun- 
try to-day.  Sir  Henry,  being  asked  what  were  the 
methods  and  characteristics  of  imperialism,  answered: 
"  I  will  recite  some  of  them.  It  magnifies  the  executive 
power;  it  acts  upon  the  passions  of  the  people;  it  con- 
ciliates them  in  classes  and  in  localities  by  lavish  expen- 
diture; it  occupies  men's  minds  with  display  and  amuse- 
ment; it  inspires  a  thirst  for  military  glory;  it  captures 
the  electorate  by  false  assertions  and  illusory  promises; 
and  then,  having  by  this  means  obtained  a  plebiscite 
and  using  electoral  forms  in  the  servile  Parliament  thus 
created,  it  crushes  opposition  and  extinguishes  liberty. 
And  the  irony  of  the  thing  is  this — that  all  this  is  done 
in  the  name  of  the  people  themselves,  and  under  the 
authority  of  their  voice,  so  that  the  people,  while  boast- 
ing of  their  supreme  power,  are  enslaved." 

Let  us  take,  clause  by  clause,  this  admirable  descrip- 
tion of  imperialism  and  see  whether  these  conditions 
exist  in  our  own  country.  "  It  magnifies  the  executive 
power — it  inspires  a  thirst  for  military  glory."  The 
minimum  strength  of  the  army  is  now,  according  to  law, 

»  Cook,  Am.  Acad,  of  Political  and  Social  Science,  Pamphlet 
No.  316. 

11 


146  FEDERAL    USURPATION 

68,951,  exclusive  of  5,208  Philippine  scouts  and  the  574 
men  of  the  Porto  Rico  regiment.  Its  maximum  strength 
is  about  100,000  to  104,000,  according  to  the  Reorgani- 
zation Law  of  1901,  which  gave  the  executive  the  right 
never  before  possessed,  namely,  to  increase  or  decrease 
the  army  within  that  limit  as  he  saw  fit.  He  can  increase 
the  various  regiments  to  war  strength  at  any  time  with- 
out waiting  for  Congress  to  act.  Prior  to  the  war 
with  Spain  the  strength  of  the  regular  army  was  25,000 
men. 

On  January  21,  1903,  the  President  approved  the 
United  States  Militia  Bill  passed  by  both  Houses  of 
Congress.  This  bill  was  one  of  the  great  triumphs  of 
Mr.  Root's  supervision  of  the  War  Department.  Under 
the  old  act  the  state  militia  was  arranged  in  divisions, 
brigades,  battalions,  troops,  and  companies,  "  as  the 
legislature  of  the  state  may  direct."  Under  the  new 
law  the  President  was  authorized  in  time  of  peace  to  fix 
the  minimum  number  of  enlisted  men  in  each  division, 
brigade,  battalion,  troop,  and  company.  Under  the 
same  law  the  Secretary  of  War  was  authorized  to  pro- 
vide for  participation  of  the  organized  militia  of  any 
state  or  territory  in  the  encampments,  maneuvers  and 
field  instruction  of  any  part  of  the  regular  army  at  or 
near  any  military  post  or  camp  or  lake  or  seacoast  de- 
fenses of  the  United  States.  And  to  induce  the  state 
troops  to  mingle  with  the  regular  army,  the  law  provided 
that  the  organized  militia  so  participating  should  receive 
the  same  subsistence  and  transportation  as  is  pro- 
vided by  law  for  the  officers  and  men  of  the  regular 
army.    This  was  held  out  as  an  inducement  to  the  men 


PATERNALISM   AND    IMPERIALISM  147 

of  the  militia  to  visit  the  camps  and  to  mingle  with  the 
soldiers  of  the  regular  army,  that  the  spectacles  of  war 
might  fire  their  ambitions  for  military  glory  and  arouse 
a  military  pride  among  the  people.  Then  provision  is 
made  that  officers  of  the  organized  militia  may  pursue 
a  regular  course  of  study  at  military  schools  or  colleges 
of  the  United  States,  and  receive  there  the  same  allow- 
ances and  quarters  to  which  officers  of  the  regular  army 
are  entitled.  They  are  to  receive  pay  at  the  rate  of 
$1  per  day  while  in  actual  attendance.  To  make  sure 
of  the  control  of  the  national  government  over  the 
state  militia,  the  adjutant  general  is  required  to  make 
frequent  reports  directly  to  the  Secretary  of  War,  and 
he  is  empowered  to  -appoint  a  board  of  officers  who  shall 
examine  those  desiring  commissions  in  the  state  militia 
as  to  their  qualifications  for  the  command  of  troops  or 
of  performing  staflf  duties,  and  this  board  of  officers  is 
required  to  certify  to  the  War  Department  its  judg- 
ment as  to  the  fitness  of  the  applicants  for  command. 
Every  means  which  ingenuity  could  devise  whereby  the 
state  militia  could  be  attached  to  the  national  govern- 
ment and  made  dependent  upon  the  national  govern- 
ment is  found  in  this  statute. 

With  twenty  modern  battle  ships,  a  great  fleet  of 
older  battle  ships,  armored  cruisers,  monitors,  and  tor- 
pedo boats,  our  navy  is  becoming,  after  England,  one  of 
the  most  formidable  in  the  world.  "  Two  thirds  of  the 
whole  revenues  of  the  government  are  devoted  to  the 
payment,"  says  Senator  Hale,  "  of  inheritances  from  past 
wars,  like  pensions  which  nobody  can  stop  and  expendi- 
tures in  view  of  future  wars.    Of  all  the  taxes  that  are 


148  FEDERAL    USURPATION 

laid,  and  all  the  revenues  that  are  collected,  nearly 
two  thirds  are  expended  for  the  military  in  a  broad 
way." 

"  It  magnifies  the  executive  power,"  says  Campbell- 
Bannerman.  While  our  people  have  seen  the  Presi- 
dent sending  our  cruisers  and  gunboats  to  Panama  to 
aid  in  wresting  that  state  from  the  Republic  of  Colom- 
bia, to  San  Domingo  to  establish  a  receivership  of  the 
customs  duties  of  that  Island,  and  about  all  over  the 
rest  of  the  world  to  keep  up  the  appearance  of  a  world 
power,  the  people  "  while  boasting  of  their  supreme 
power,"  in  the  language  of  Bannerman,  "  are  enslaved." 
Their  earnings  pay  for  all  this  splendor,  and  this  glam- 
our is  created  to  divert  their  attention  from  the  burdens 
which  they  bear,  and  from  the  danger  to  their  liberties 
which  such  conditions  create.  In  the  meanwhile  the 
President  keeps  the  people  interested,  gives  them  some- 
thing new  to  think  about,  and  helps  to  put  off  the  day 
of  reckoning  for  these  abuses.  "  Gild  the  dome  of  the 
Invalides,"  was  Napoleon's  cynical  command  when  he 
learned  that  the  people  of  Paris  were  becoming  desper- 
ate, and  when  murmurs  of  discontent  arise  in  our  own 
country  the  President  orders  the  war  ships  to  the 
Pacific. 

"  It  conciliates  them  in  classes  and  in  localities  by 
lavish  expenditure."  The  total  amount  voted  by  the 
first  Congress  of  President  Harrison's  administration 
was  about  $1,000,000,000,  and  this  vast  expenditure, 
astounding  the  people,  was  one  of  the  principal  causes 
of  his  defeat  for  the  Presidency  in  1892.  Yet  the  last 
Congress    appropriated    nearly    $2,000,000,000    of    the 


PATERNALISM   AND   IMPERIALISM  149 

people's  money.  At  the  first  session  was  appropriated 
$880,000,000  ($80,000,000  of  which  was  for  canal  ex- 
penses), being  $300,000,000  more  than  the  first  year  of 
the  McKinley  administration,  an  increase  of  sixty  per 
cent.  In  the  last  Congress  about  30,000  bills  and  reso- 
lutions were  introduced  in  the  House  of  Representa- 
tives. Six  hundred  and  twenty-eight  private  pension 
bills  were  passed  in  the  last  days  of  the  session  in  an 
hour  and  twenty-five  minutes,  being  the  highest  record 
in  the  passage  of  pension  bills  in  that  body.  Labor 
unions  and  all  kinds  of  social  societies,  every  class  that 
controls  votes  in  the  community,  anything  in  the  shape 
of  an  organization  in  these  days  can  procure  favors  and 
appropriations  from  Congress,  but  the  great  body  of 
the  people  who  are  unorganized  pay  the  bills.  Lavish 
expenditure  to  conciliate  the  classes  in  localities  is 
seen  best  in  the  agricultural  appropriations,  in  those  for 
irrigating  arid  lands,  for  the  geological  survey,  and  the 
hundred  other  means  of  absorbing  the  people's  money. 
No  nation  in  all  history  has  ever  scattered  with  so  lav- 
ish a  hand  the  hard  earnings  of  its  people  as  the  United 
States  in  the  last  three  or  four  years;  and  the  Presi- 
dent, who  is  the  sworn  protector  of  the  Constitution 
and  the  law,  with  every  obligation  upon  him  to  protect 
the  people  from  such  plunder,  has  not  vetoed  a  single 
bill,  so  far  as  I  can  ascertain,  voting  away  the  people's 
hard-earned  money. 

"  It  captures  the  electorate  by  false  assertions  and 
illusory  promises,"  says  Campbell-Bannerman.  The 
President,  in  an  address  delivered  at  Fargo,  April  7, 
1903,  says  of  the  administration  of  justice  in  the  Philip- 


150  FEDERAL    USURPATION 

pines :  ^  "  The  administration  is  incorruptibly  honest. 
Justice  is  as  jealously  safeguarded  as  here  at  home." 
Mr.  Root  says,  as  quoted  above,  that  while  Secretary 
of  War  he  made  the  laws  and  executed  judgment,  and 
yet  while  he  was  doing  this  the  President  was  declar- 
ing at  Fargo  that  justice  in  the  Philippines  was  as  jeal- 
ously safeguarded  as  here  at  home.  Trial  by  jury  does 
not  exist  in  the  Philippines  in  either  civil  or  criminal 
causes.^  In  criminal  causes  the  Spanish  system  was 
retained.^ 

"  It  occupies  men's  minds  with  display  and  amuse- 
ment," says  Campbell-Bannerman.  Can  anyone  fail  to 
see  the  changed  attitude  of  the  government  in  recent 
years  .'*  The  German  Kaiser  supervises  the  opera,  paint- 
ing, sculpture,  and  about  every  profession  in  that  coun- 
try. The  censure  of  the  Kaiser  destroys  the  artist.  The 
eyes  of  all  his  people  are  upon  the  Kaiser — what  he 
does  and  what  he  says.  He  seizes  every  possible  op- 
portunity to  declare  his  sentiments  upon  every  con- 
ceivable subject  of  government  in  Prussia.  He  identi- 
fies himself  personally  and  publicly  with  every  act  of 
his  government,  and  makes  every  act  of  his  administra- 
tion appear  to  be  his  own.  Just  so  in  this  country. 
The  President  has  taken  over  the  supervision  of  about 
the  whole  of  life.  Though  not  a  lawyer,  he  criticises  the 
decisions  of  the  United  States  Supreme  Court  and  the 
lower  courts.  He  keeps  the  eyes  of  all  the  people 
turned  toward  the  theater  of  his  action,  and  he  is  always 

»  Lodge,  President's  Addresses,  p.  157. 
2  Dorr  V.  United  States,  195  U.  S.,  138. 
»  Keppner  v.  United  States,  195  U.  S.,  100. 


PATERNALISM   AND    IMPERIALISM  151 

in  the  center  of  the  stage.     He  identifies  himself  per- 
sonally and  publicly  with  every  act  of  the  government 
which  he  believes  will  be  popular,  and  never  loses  an 
opportunity  to  declare  his  sentiments  on  every  question 
of  government.     He   regards  himself  as  commissioned 
to  govern  the  state,  and  also  to  lead  the  people  in  re- 
ligion, morals,  and  ordinary  affairs  of  life.    Every  social 
subject  brings  forth  comment  from  him.    Whether  foot- 
ball shall  be  played  in  the  universities  and  colleges  and 
how  it  shall  be  played,  whether  it  is  a  wholesome  phys- 
ical exercise,  the  morals  of  the  game ;  what  should  be 
taught  and  what  should  not  be  taught  in  the  schools ; 
everything  in  the  scope  of  human  life  and  human  action 
is  within  the  ken  of  our  Pr'esident.    If  any  class  of  men 
have  a  grievance  they  are  induced  by  his  action  to  look 
to  him  for  redress,  and  the  kaleidoscope  is  kept  mov- 
ing, ever  moving,  with  the  central  figure  ever  upon  the 
stage.     Kampici,  the  Chinese  Machiavelli,  in  telling  the 
secret  of   absolutism   twenty-two   centuries   ago,    said : 
"  Amuse  the  people,  tire  them  not,  let  them  not  know." 
Under    these    conditions    the    customs    and    forms 
which  prevail  in  monarchical  countries  are  being  adopted 
here.     Secret-service  men  swarm  about  the  person  of 
our   President.      Platoons   of   police   are   called   in   for 
guards ;  cavalry  are  frequently  employed.     Court  forms 
are  adopted  at  the  executive  mansion,  and  efforts  too 
numerous  to  detail  are  made  to  exalt  the  person  of  the 
President  and  to  accustom  the  people  to  the  change  of 
government  which  has  been  rapidly  going  on.    A  choice 
collection  of  epaulets,  with  flag  flying  and  band  playing, 
have  escorted  the  Secretary  of  War  to  and  from  the 


152  FEDERAL   USURPATION 

depot  at  Washington.  Everywhere  in  every  direction 
we  are  putting  on  the  airs  and  adopting  the  customs  of 
a  monarchical  form  of  government,  and  we  are  doing 
this  because  we  have  become  an  empire  and  because 
our  people  are  given  over  to  the  spirit  of  mat^ialism, 
and  are  forgetful  of  the  sturdy  industry  and  simplicity 
which  marked  our  fathers  and  which  always  accom- 
panies true  greatness. 

A  few  months  ago  a  writer  who  represents  in  his 
ideas  those  of  many  people,  wrote  a  letter  to  the  New 
York  World  containing  this  statement :  "  Why  not  abol- 
ish the  States  and  have  Departments  like  France,  only 
more  simplified  ?  Retain  the  State  boundaries  and  names 
as  now,  but  abolish  Governorships  and  Legislatures. 
Leave  the  Congressional  Districts  and  elect  two  United 
States  Senators  from  each  Department  by  popular  vote."  * 
Adopt  the  government  of  France  in  the  United  States! 
Let  us  see  what  it  is.  The  revolution  of  1789  destroyed 
all  the  existing  local  divisions  except  the  Commune,  and 
they  were  replaced  by  artificial  districts  so  that  the 
Commune  is  the  only  true  center  of  local  life.^  The 
whole  country  is  divided  into  eighty-six  departments, 
at  the  head  of  each  of  which  is  a  prefect  appointed  and 
removed  at  pleasure  by  the  President  of  the  Republic. 
Although  appointed  in  form  by  the  President,  he  is  in 
reality  nominated  by  the  Minister  of  the  Interior,  who 
represents  the  Ministry,  and  has  the  rea.1  power  of  ap- 
pointment. The  office  of  the  minister  is  political,  and  the 
prefect  who  rules  each  department  under  him  is  a  po- 

1  N.  Y.  World,  June  24,  1907. 

*  Lowell,  Governments  and  Parties  in  Cont.  Europe,  p.  36. 


PATERNALISM   AND    IMPERIALISM  153 

litical  officer.  He  is  the  agent  of  the  Minister  of  the  In- 
terior and  the  central  government  in  regard  to  all  mat- 
ters. He  has  independent  authority  over  all  those  things 
in  the  department  which  in  our  country  are  controlled 
entirely  by  the  people  of  the  locaHty.  He  can  dissolve 
the  local  assembly,  either  directly  or  through  the  Presi- 
dent of  the  Republic,  and  can  veto  many  of  its  acts.  The 
local  assembly  is  largely  a  formal  body,  the  deputy  or 
prefect  acting  for  the  general  government  ruling  the  de- 
partment. The  Mayor  of  each  Commune  is,  to  a  certain 
extent,  an  agent  of  the  central  government,  and  is  ab- 
solutely under  the  orders  of  the  prefect.  His  acts  in 
regard  to  many  local  matters,  such  as  police,  public 
health,  and  many  others,  may  be  annulled  by  the  prefect, 
who  also  has  the  power  to  issue,  as  to  those  matters, 
his  own  direct  orders.  The  prefect  may  suspend  the 
Mayor  of  the  Commune  from  office  for  a  month ;  in 
short,  as  the  agent  of  the  central  government,  the  prefect 
is  practically  the  governor  of  each  Commune.  It  is  not 
uncommon  in  France  for  the  Minister  of  the  Interior  to 
dismiss  the  prefect  after  election,  because  "  he  failed  to 
carry  his  department."  Paris  is  absolutely  under  the ' 
control  of  the  central  government. 

Representative  government  in  any  true  sense  would 
be  impossible  in  the  United  States  if  we  attempted  to 
legislate  for  all  the  affairs  of  life  for  over  eighty  million 
people  composed  of  all  races,  all  religions,  and  all  grades 
of  intelligence,  scattered  throughout  the  different  com- 
munities and  states  over  a  territory  of  over  three  and  a 
half  million  square  miles.  Any  such  attempt  to  control 
this  country  from  Washington  would  involve  a  more 


154  "  FEDERAL    USURPATION 

extensive  bureaucratic  government  than  has  ever  been 
knovk^n  in  the  history  of  the  world.  Such  a  government 
is  always  autocratic  and  often  corrupt,  and  yet  it  is 
toward  such  a  government  that  we  are  rapidly  tending. 

With  the  imperialistic  reign  has  come  arbitrary  meth- 
ods and  manners  on  the  part  of  our  President.  Presi- 
dent Roosevelt,  referring  to  the  Constitution  of  Cuba, 
an  instrument  which  our  government  had  helped  to 
frame,  on  September  28,  1906,  telegraphed  Secretary 
Taft  with  reference  to  an  adjustment  of  Cuban  afTairs: 
"  I  do  not  care  in  the  least  for  the  fact  that  such  an 
agreement  is  unconstitutional."  The  ancient  maxim  of 
benevolent  despotism  was,  "  Let  my  subjects  say  what 
they  like  so  long  as  I  do  what  I  like,"  but  even  this  priv- 
ilege is  not  granted  the  people  of  the  United  States,  for 
we  have  learned  in  many  different  cases  that  he  who 
differs  from  our  President  finds  himself  involved  in  great 
difficulties.  The  President's  language  with  respect  to 
the  South  American  republics ;  the  general  resolution  of 
Congress  ordering  Spain  out  of  Cuba  within  thirty  days ; 
the  summary  ejection  of  people  from  the  White  House; 
•the  constant  interference  in  the  affairs  of  other  coun- 
tries ;  the  dismissal  of  Miss  Rebecca  Taylor  because  of 
her  expressions  about  imperialism ;  the  executive  orders 
retiring  naval  officers ;  the  promotion  of  inexperienced 
naval  and  military  officers  over  the  heads  of  their  supe- 
riors ;  the  suspension  in  several  cases  of  the  Civil  Service 
Law — ^all  these  point  to  so  changed  a  condition  of  affairs 
that  we  sometimes  think  it  is  all  a  dream. 

The  conditions  which  we  have  described  are  exactly 
the  conditions  which  have  preceded  a  change  from  de- 


PATERNALISM   AND    IMPERIALISM  155 

mocracy  to  empire  and  despotism  ever  since  the  world 
began.  The  building  up  of  great  fortunes;  the  growth 
of  a  moneyed  aristocracy ;  the  passing  of  wealth  into  the 
hands  of  the  few ;  the  separation  of  the  people  into  classes ; 
the  establishment  of  vast  monopolies  extorting  money 
from  the  people;  the  universal  desire  for  national  gran- 
deur and  glory,  together  with  the  spirit  of  restlessness  in 
our  people — these  are  dangerous  omens.  If  such  usurpa- 
tions as  I  have  described  should  pass  unchallenged  by 
the  American  people,  they  would  soon  acquire  the  force 
of  precedent.  Now  is  the  time  and  we  are  the  people 
to  watch  with  jealousy  such  beginnings,  to  indignantly 
attack  them  and,  if  possible,  to  destroy  them. 


V 

CONGRESSIONAL   USURPATION 


"The  tyranny  of  the  Legislature  is  really  the  danger  most  to 
be  feared,  and  will  continue  to  be  so  for  many  years  to  come. 
The  tyranny  of  the  executive  power  will  come  in  its  turn,  but 
at  a  more  distant  period." 

Jefferson. 


"I  know  not  how  better  to  describe  our  form  of  government 
in  a  simple  phrase  than  by  calling  it  a  government  by  the 
Chairmen  of  Standing  Committees  of  Congress." 

WooDRow  Wilson. 


"Every  foreign  observer  has  remarked  how  little  real  debate, 
in  the  European  sense,  takes  place  in  the  House  of  Represent- 
atives. The  very  habit  of  debate,  the  expectation  of  debate, 
the  idea  that  debate  is  needed,  have  vanished  except  as  regards 
questions  of  revenue  and  exf>enditure,  because  the  center  of 
gravity  has  shifted  from  the  house  to  the  committees." 

James  Bryce, 


CHAPTER  V 

CONGRESSIONAL   USURPATION 

There  is  no  more  striking  and  significant  fact  in 
the  public  life  of  our  country  than  the  predominance  in 
recent  years  of  the  United  States  Senate  over  the  House 
of  Representatives,  the  popular  branch  of  Congress. 
Claiming  to  be  more  democratic  than  European  countries, 
the  whole  trend  and  current  in  the  United  States  recently 
has  been  toward  the  consolidation  of  power  in  the  Senate 
and  the  President  to  the  destruction  of  the  equipoise  of 
the  checks  and  balances  of  our  Constitution.  The  tend- 
ency of  modern  life  during  the  last  thirty  years,  out- 
side of  the  German  Empire  and  the  United  States,  has 
been  steadily  toward  increasing  the  power  of  the  legis- 
lative body  elected  directly  by  the  people. 

The  members  of  the  French  Senate  are  elected  in  each 
department  in  France  by  the  electoral  college  composed 
of  the  deputies,  the  members  of  the  general  councils,  the 
members  of  the  special  councils,  and  the  delegates  chosen 
by  the  councils  and  by  the  communes  or  towns.  Each 
department  in  proportion  to  its  population  is  entitled 
to  from  two  to  ten  senators,  who  are  elected  for  a  term 
of  nine  years,  one  third  retiring  each  three  years*  The 
legislative  power  of  the  Senate  and  Chamber  of  Depu- 
ties is  the  same  except  as  to  revenue  bills,  which  are 

159 


l6o  FEDERAL   USURPATION 

originated  by  the  Chamber  of  Deputies  in  the  same 
manner  as  provided  by  our  Constitution.  Notwithstand- 
ing that  the  French  Senators  are  elected  in  very  much 
the  same  way  as  in  our  own  country,  with  a  longer  term 
of  office,  and  with  equal  legislative  powers,  and  would 
naturally  be  a  more  influential  body  than  the  Chamber 
of  Deputies  elected  by  the  People,  yet  Mr.  Lowell,  in  his 
admirable  work  on  "  Governments  and  Parties  in  Con- 
tinental Europe,"  says :  "  In  reality  it  is  by  far  the  weaker 
body  of  the  two,  although  it  contains  at  least  as  much 
political  ability  and  experience  as  the  other  House,  and, 
indeed,  has  as  much  dignity,  and  is  composed  of  as  im- 
pressive a  body  of  men  as  can  be  found  in  any  legislative 
chamber  the  world  over.  The  fact  is  that,  according  to 
the  traditions  of  the  parliamentary  system,  the  cabinet  is 
responsible  only  to  the  more  popular  branch  of  the  legis- 
lature, and  in  all  but  one  of  the  instances  where  the  cab- 
inet in  France  has  resigned  on  an  adverse  vote  of  the 
Senate,  the  vote  was  rather  an  excuse  for  the  withdrawal 
of  a  discredited  ministry  than  the  cause  of  its  resig- 
nation." ^ 

The  Italian  Senate  is  composed  of  the  princes  of  the 
royal  family,  of  members  appointed  by  the  king  for 
life,  of  bishops  and  high  officials,  civil  and  military 
and  judicial,  and  of  deputies  who  have  served  three 
terms  or  six  years.  It  has  the  right  to  originate  legis- 
lation except  revenue  measures,  which  must  be  first 
presented  in  the  Chamber  of  Deputies.  It  has  judicial 
functions,  and  sits  as  a  court  to  try  ministers  impeached 

'  Lowell,  Governments  and   Parties  in  Cont.   Europe,  voL 

i,  pp.    21,    2  2. 


CONGRESSIONAL   USURPATION  l6l 

by  the  Chamber  of  Deputies,  to  try  cases  of  high 
treason  and  attempts  upon  the  safety  of  the  state. 
Clothed  as  it  is  with  legislative  initiative  like  the  Cham- 
ber of  Deputies  aside  from  revenue  bills,  its  members 
being  selected  from  the  higher  walks  of  life,  one  would 
expect  it  to  be  the  more  powerful.  But  Mr.  Lowell 
says:  "As  a  matter  of  fact,  the  Senate  has  very  little 
real  power,  and  is  obliged  to  yield  to  the  will  of  the 
Lower  House."  ^ 

In  Switzerland  the  Council  of  States  corresponds  to 
the  United  States  Senate,  and  its  members  are  elected 
by  the  local  legislature  of  each  canton,  while  the  mem- 
bers of  the  National  Council  are  elected  directly  by  the 
people.  We  see  in  Switzerland  the  exact  copy  in  this 
respect  of  our  own  government.  The  members  of  the 
Council  of  States  represent  their  cantons.  The  dele- 
gates in  the  National  Council  represent  the  people.  The 
power  and  influence  of  the  Council  of  States  has  stead- 
ily declined  while  the  power  of  the  National  Council 
has  steadily  increased,  and  it  is  said  that  ambitious 
young  Swiss  seek  it  in  preference  to  the  Council  of 
States.  With  us  a  term  or  terms  in  the  House  of  Rep- 
resentatives is  a  stepping-stone  to  the  Senate.  In 
Switzerland  a  term  or  more  in  the  Council  of  States  is 
a  stepping-stone  to  the  National  Council. 

In  like  manner  we  might  pass  over  each  European 
country,  with  the  exception  of  the  German  Empire,  and 
find  that  for  many  years  the  Chamber  whose  members 
are  elected  directly  by  the  people  has  been  the  govern- 

>  Lowell,  Governments  and  Parties  in  Cont.  Europe,  vol. 
i.  p.  156. 

12 


l62  FEDERAL    USURPATION 

ing  body  of  the  country,  while  the  power  of  the  upper 
house  has  been  steadily  waning.  In  the  German  Em- 
pire, however,  the  power  of  the  Kaiser,  as  King  of 
Prussia  and  Emperor  of  Germany,  is  practically  con- 
solidated with  the  power  of  the  Bundesrath,  which  cor- 
responds to  our  American  Senate,  and  these  united 
powers  entirely  overwhelm  the  Reichstag,  or  popular 
branch  of  the  legislature.  The  German  Emperor,  like 
the  President  of  the  United  States,  selects  his  Chancel- 
lor and  his  ministers,  and  they  are  accountable  to  him 
only.  Through  the  Bundesrath,  in  which  the  Kingdom 
of  Prussia  has  a  controlling  influence  and  in  which  the 
Chancellor  is  all  powerful,  the  German  Emperor  con- 
trols to  a  great  extent  the  legislation  of  the  German 
Empire.  The  conditions  of  Prussia  and  of  the  German 
Empire  to-day  are  much  more  similar  to  those  in  the 
United  States  than  those  in  any  other  country  in  the 
world.  We  need  not  call  to  the  reader's  attention  that 
Great  Britain  is  ruled  by  its  House  of  Commons,  and 
that  the  House  of  Lords,  while  it  occasionally  refuses 
its  assent  to  a  bill,  eventually  gives  way  to  the  House 
of  Commons. 

The  causes  for  the  decay  in  power  and  prestige  of 
our  House  of  Representatives  are  easily  ascertainable. 
Though  its  members  are  elected  directly  by  the  people 
it  is  one  of  the  most  undemocratic  bodies  in  the  world. 
For  all  practical  purposes  there  is  no  House  of  Rep- 
resentatives. The  Speaker  and  the  Chairmen  of  Com- 
mittees practically  control  all  the  legislation  of  the 
House,  and  control  it  by  methods  so  arbitrary  and  des- 
potic that  they  would  not  be  tolerated  even  in  Russia. 


CONGRESSIONAL    USURPATION  163 

The  Constitution  simply  provides  that  the  House  shall 
choose  its  Speaker  and  other  officers,  but  says  noth- 
ing of  their  powers  and  duties.  In  legislative  bodies  of 
other  countries,  the  speaker  is  selected  without  any  ref- 
erence to  partisan  bias,  and  he  presides  over  the  cham- 
ber with  absolute  impartiality.  In  our  House  of  Rep- 
resentatives, however,  he  is  selected  because  of  his 
many  years'  experience  in  the  House,  his  knowledge  of 
its  rules,  and  his  ability  to  use  those  rules  and  his  place 
to  further  the  political  interests  of  his  party.  He  ap- 
points the  members  of  sixty-two  committees,  among 
whom  the  legislation  in  the  House  is  parceled  out  for 
examination.  He  selects  the  chairman  also  of  each 
committee.  If  he  knows  what  particular  measures  may 
be  brought  to  the  attention  of  the  House,  he  is  able  to 
arrange  the  committee  to  which  those  measures  will  be 
referred  so  as  to  secure  action  in  accordance  with  his 
own  views  of  the  subject  under  consideration. 

Except  when  the  friends  of  measures  presented  to 
the  House  of  Representatives  are  allowed  to  be  heard 
upon  them,  the  committee  meetings  are  secret.  The 
House  never  knows,  nor  do  the  constituents  of  a  mem- 
ber of  Congress  ever  know,  what  his  action  in  a  com- 
mittee was  upon  any  particular  bill ;  and  if  a  member  of 
the  committee  should  disclose  it  in  the  open  House,  or 
anywhere  else,  it  would  be  a  matter  of  reproach.  So 
we  have  sixty-two  different  committees,  composed  in 
greater  part  of  about  eleven  members  each,  secretly 
passing  upon  the  advisability  of  legislation.  With  no 
public  discussion,  with  the  seal  of  secrecy  upon  com- 
mittee action,   the   whole   matter  of  passing   a   public 


164  FEDERAL    USURPATION 

statute  is  unknown  to  the  constituents  of  each  repre- 
sentative, in  fact,  unknown  to  all  the  people  of  the 
United  States. 

Responsibility  is  absolutely  impossible  under  such 
conditions,  but  general  corruption  is  altogether  prob- 
able. A  great  corporation,  or  combination  of  capital, 
seeking  special  legislation,  would  be  unable  to  control 
a  majority  of  the  House  of  Representatives  where  the 
merits  of  the  legislation  were  known  and  openly  dis- 
cussed. But  a  committee  is  easily  controlled  because 
its  action  is  secret,  and  the  constituency  of  a  member 
would  never  know  what  his  action  had  been.  Occa- 
sionally such  corporations  can  reach  the  chairman,  who 
practically  controls  the  action  of  his  committee.  If  un- 
able to  control  the  chairman,  it  can  influence  two  or 
three  members  of  the  committee,  who,  by  what  is 
known  as  "  log  rolling  "  with  other  members,  can  bring 
about  the  approval  of  an  obnoxious  bill. 

The  greatest  benefit  of  open  discussion  of  public 
business  is  the  enlightenment  of  public  opinion,  but  by 
this  method  of  legislation  the  public  is  kept  in  igno- 
rance of  what  occurs  in  the  committee,  and  it  comes 
to  take  little  interest  in  legislation.  Not  even  the  rep- 
resentatives of  the  newspapers  can  ascertain  what  is 
taking  place  in  these  committees.  With  no  public  dis- 
cussion of  the  merits  of  the  bills,  there  is  no  public  in- 
terest in  their  passage,  and  no  opportunity  whatever  for 
public  opinion  to  bring  either  commendation  or  con- 
demnation to  bear  upon  a  bill. 

Now  let  us  observe  the  number  of  bills  referred  to 
these  committees.     Between  the  first  Monday  of  De- 


CONGRESSIONAL    USURPATION  165 

cember,  1905,  and  February  17,  1906,  15,000  bills  and 
resolutions,  covering  every  conceivable  subject  of  leg- 
islation, were  introduced  into  the  House  of  Repre- 
sentatives and  referred  to  the  appropriate  committees.^ 
Thirty  thousand  bills  and  resolutions  were  introduced 
into  the  House  of  Representatives  in  the  Fifty-ninth 
Congress.  Three  hundred  and  seventy-five  members 
of  that  House  had  little  if  any  knowledge  of  any  one 
of  those  30,000  bills  and  resolutions  before  they  were 
reported  by  the  committee. 

Now  what  opportunity  have  they  to  know  anything 
about  a  proposed  law  after  it  is  reported  by  the  com- 
mittee? The  chairman  of  that  committee  is  usually 
awarded  one  hour  for  the  discussion  of  his  bill.  The 
chairman  selects  the  members  of  the  committee  who 
are  to  speak  upon  the  bill,  and  fixes  the  limit  of  time 
for  each.  He  even  has  the  power  to  determine  whether 
an  amendment  may  be  offered.  Within  the  time  given 
to  him  he  demands  the  previous  question,  and  in  the 
large  majority  of  cases  the  bill  is  simply  jammed 
through  by  a  party  vote  which  knows  not  and  cares  not 
for  its  effect  upon  the  public  welfare.  Thousands  of 
bills  in  recent  years  have  been  passed  by  the  House 
of  Representatives,  of  the  contents  of  which  the  greater 
part  of  the  members  voting  for  them  necessarily  knew 
nothing. 

The  ablest  men  in  the  House  are  selected  for  the 
Ways   and    Means    Committee,   having  charge   of  the 

>  Address  of  Speaker  Cannon  of  February  17,  1906,  before  the 
Union  League  Club  of  Philadelphia.  Annual  Report  of  Club, 
p.  113. 


l66  FEDERAL    USURPATION 

raising  of  revenue,  and  for  the  fifteen  or  more  commit- 
tees having  charge  of  appropriations.  The  appropria- 
tion bills  are  the  most  important  bills  passed  in  our 
day  by  the  House  of  Representatives.  To  understand 
fully  the  wisdom  of  an  appropriation,  the  members  must 
be  thoroughly  versed  in  the  technical  details  of  those 
departments  of  government  asking  for  the  appropria- 
tions. Thus  the  attention  of  a  large  number  of  the 
ablest  members  of  the  House  is  continually  diverted 
from  the  consideration  of  general  legislation  by  the 
absorbing  obligations  of  the  committees  on  appropri- 
ations. 

The  ordinary  bill,  outside  of  appropriations,  if  re- 
ported to  the  House  without  objection  in  the  commit- 
tee, is  usually  passed  without  any  opposition.  The 
larger  part  of  all  the  legislation  is  made  practically  by 
the  committees  in  secret  so  far  as  the  House  is  con- 
cerned. On  January  ii,  1907,  the  House  had  700  pri- 
vate pension  bills  on  its  daily  calendar,  and  628  of 
them  were  passed  in  one  hour  and  thirty-five  minutes. 
On  one  day  in  January,  1905,  459  bills  were  passed  in 
the  House  of  Representatives  in  eighteen  minutes.  In 
1899  the  River  and  Harbor  Bill,  carrying  appropria- 
tions amounting  to  $30,000,000,  was  passed  in  the 
House  of  Representatives  after  a  debate  of  ninety 
minutes.^  The  whole  governmental  policy  of  our 
country  toward  our  dependencies,  including  our  re- 
lations to  Cuba,  was  determined  by  the  amendments 
to  the  Army  Appropriation   Bill  of    1901,   measures  to 

•  Reinsch,   American   Legislation  and   Legislative   Methods, 
p.  69. 


CONGRESSIONAL    USURPATION  167 

which  the  House  gave  up  but  a  single  hour  of  dis- 
cussion.^ 

We  have  assumed  above  that  a  bill  which  had  been 
reported  with  approval  by  a  committee  would  be  en- 
titled at  least  to  a  hearing  in  the  House.  This  is  not 
so.  The  Committee  of  Five  on  Rules,  selected  by  the 
Speaker  and  of  which  he  is  chairman,  at  any  time  may 
report  a  rule  which  makes  impossible  the  hearing  or 
passage  of  any  particular  bill.  This  committee  can  even 
go  so  far  as  to  propose  for  the  consideration  of  the 
House  a  measure  not  yet  reported,  and  may  discharge 
a  committee  from  any  matter  pending  before  it.  It  can 
fix  the  hearing  of  any  bill  for  any  particular  day  by 
special  order.  It  has  the  practical  control  of  the  entire 
course  of  business  in  the  House,  determining  how  much 
time  shall  be  given  to  any  subject  and  in  what  order 
business  may  be  brought  before  it.  It  can  provide  that 
a  bill  returned  from  the  Senate  be  taken  up  and  passed 
at  once  without  debate.  It  can  provide  and  has  pro- 
vided that  points  of  order,  as  objections,  should  not  be 
allowed  to  intervene  against  the  consideration  of  an 
appropriation  bill.^ 

Although  the  Speaker,  through  the  Committee  on 
Rules,  exercises  practically  omnipotent  power  over  leg- 
islation, such  power  is  apparently  insufficient  for  his 
ambitions.  He  has,  in  addition,  what  is  known  as  the 
power   of  recognition,   or,   what   would   be   more   truly 

'  Reinsch,  American  Legislation  and  Legislative  Methods, 
p.  119. 

2  Reinsch,  American  Legislation  and  Legislative  Methods, 
PP-  57.  58- 


i68  FEDERAL    USURPATION 

descriptive,  the  power  of  nonrecognition  of  members, 
although  he  is  aware  that  they  are  making  a  motion. 
If  a  member  asks  for  the  unanimous  consent  of  the 
House  to  suspend  a  rule  and  pass  a  bill,  the  Speaker's 
acuteness  of  hearing  depends  upon  the  member  asking, 
and  whether  the  Speaker  desires  that  unanimous  consent 
shall  be  given.  He  refuses  recognition  to  any  member 
attempting  to  speak  upon  a  bill  whose  name  has  not 
been  given  him  by  the  chairman  of  the  reporting  com- 
mittee. He  frequently  refuses  to  have  any  bill  heard 
before  the  House  to  which  he  is  opposed,  and  takes  it 
from  its  order  upon  the  calendar,  placing  it  where  it  will 
not  be  reached.  He  practically  controls  all  the  legisla- 
tion of  the  House,  and  controls  it  by  methods  so  arbi- 
trary that  to  submit  to  them  is  degrading.  In  1881  an 
indignant  member  declared  upon  the  floor  of  the  House: 
"  When  this  Republic  goes  down  ...  it  will  not  be 
through  the  '  man  on  horseback '  or  any  President,  but 
through  the  man  on  the  woolsack  in  this  House,  under 
these  despotic  rules,  who  can  prevent  the  slightest  in- 
terference from  individual  members;  who  can,  if  he  will, 
make  and  unmake  laws  like  an  emperor,  hold  back  or 
give  the  sinews  of  war  and  the  salaries  of  peace."  * 
Bourke  Cockran,  speaking  in  the  House  in  April,  1904, 
said :  "  Again,  sir,  by  our  rules  no  Member  can  challenge 
the  judgment  of  the  House  on  anything.  He  cannot 
even  address  a  petition  or  offer  a  resolution  from  his 
place  on  the  floor.  He  must  go  around  to  a  basket,  out 
of  the  notice  of  the  House,  and  drop  his  application,  his 
resolution,  or  petition  silently  and  secretly  into  a  recep- 
'  Cong.  Record,  Forty-sixth  Cong.,  2d  Session,  1207. 


CONGRESSIONAL    USURPATION  169 

tacle,  as  though  he  was  engaged  in  an  act  of  doubtful 
propriety  to  be  performed  surreptitiously." 

Let  us  see  now  some  of  the  direct  results  of  this 
kind  of  legislation.  In  the  Fifty-seventh  Congress  the 
House  passed  3,430  bills  and  resolutions.  During  the 
second  session  of  the  next  Congress  there  were  reported 
by  the  various  House  Committees  4,904  measures.  Dur- 
ing the  same  session  3,992  acts  were  passed  by  both 
Houses,  1,832  of  which  were  public  acts,  2,160  private 
laws,  and  40  joint  resolutions.^  To  note  a  decided 
contrast,  during  the  years  between  1899  and  1905  the 
English  Parliament,  legislating  for  42,000,000  people, 
passed  only  46  general  and  246  special  laws. 

Twenty  years  or  more  ago,  when  the  Pension  De- 
partment was  refusing  to  approve  many  pensions.  Con- 
gress commenced  passing  private  pension  bills.  And 
now  many  members  of  the  House,  having  no  opportu- 
nity to  distinguish  themselves  in  debate,  for  the  House 
"  has  ceased  to  be  a  deliberative  assembly,"  are  engaged 
exclusively  in  procuring  the  passage  of  private  pension 
bills  and  of  measures  making  appropriations  for  their 
own  districts.  Representative  Curtis,  now  United 
States  Senator  from  Kansas,  among  others,  kept  direc- 
tories of  applicants  for  pensions,  with  thousands  of 
names  and  notes  as  to  the  status  of  each  claim.  Mem- 
bers accept  all  kinds  of  bills  and  present  them  to  the 
House  as  an  accommodation  to  their  friends  and  con- 
stituents. The  result  is  that,  notwithstanding  all  the 
powers  possessed  by  Congress  are  enumerated  in  seven- 
teen short  sections,  it  passes  more  bills  in  each  two 
>  Reinsch,  American  Legislation  and  Leg.  Methods,  p.  300. 


lyo  FEDERAL    USURPATION 

years  than  are  passed  in  the  same  period  by  all  the  other 
national  legislative  bodies  in  the  whole  world.  No  bill 
should  ever  be  sent  to  a  committee  until  after  open  dis- 
cussion in  the  House,  and  then  it  should  be  sent  there 
only  for  the  purpose  of  correction  and  amendment,  later 
to  be  reported,  discussed,  and  passed  in  the  full  House. 
No  private  pension  bills  nor  special  bills  should  be  con- 
sidered by  Congress.  The  Pension  Bureau  and  Court 
of  Claims  are  quite  sufficient  to  care  for  those. 

Striking  out  the  private  bills,  the  House  should  not 
consider  over  200  bills,  outside  of  the  appropriation 
bills,  in  a  single  Congress,  and  those  should  be  discussed 
in  open  session  with  no  limits  upon  discussion.  With 
30,000  bills  before  a  single  Congress,  few  bills  can  re- 
ceive any  attention.  Both  chairmen  and  members  of 
committees,  having  no  chance  to  procure  fame  and 
honor  by  manly  eflforts  in  discussing  public  matters  in 
open  session,  turn  naturally  to  gaining  favor  by  seeking 
to  confer  benefits  through  legislation  and  thus  to  attach 
a  large  number  of  their  constituents  firmly  to  them- 
selves. 

Because  it  is  impossible  for  the  House  with  such  a 
large  body  of  legislation  before  it  to  give  careful  atten- 
tion to  measures,  and  because  the  chairman  and  mem- 
bers of  each  of  the  sixty-two  committees  are  struggling 
to  increase  the  power  of  their  committee  by  reporting 
many  bills,  the  cost  of  government  is  multiplied  many 
fold.  The  Fifty-first  Congress,  in  1890-91,  made  appro- 
priations to  the  amount  of  about  $1,000,000,000,  or 
$170,000,000  more  than  ever  before  had  been  appropri- 
ated by  any  Congress.    Between  1890  and  1902  Federal 


CONGRESSIONAL    USURPATION  171 

expenditures  increased  nearly  one  hundred  per  cent. 
The  appropriations  of  Congress  for  the  year  1898  were 
$485,002,044;  in  1906,  the  first  session  of  the  Fifty-ninth 
Congress,  they  were  $820,184,624,  or  nearly  double  the 
amount  of  eight  years  before.  The  last  Congress  appro- 
priated to  the  River  and  Harbor  Bill  alone,  $83,816,138, 
a  sum  larger  than  the  total  cost  of  all  government  in 
the  United  States  in  any  single  year  prior  to  i860.  The 
expenses  of  government  are  fast  approaching  those  of 
the  Civil  War  with  over  1,000,000  men  in  arms. 

By  this  method  of  committees  with  each  member 
seeking  to  attach  to  himself  many  constituents  through 
lavish  disbursements  of  public  money,  legislation  has 
increased  so  rapidly  that  it  has  become  impossible  to 
secure  any  careful  consideration  for  any  measure  ex- 
cept the  most  important,  and  it  is  only  the  important 
which  should  be  considered  and  passed  at  all.  None  of 
the  bills  which  pass  the  House  are  discussed  in  a  delib- 
erative way.  Frequently  only  two  or  three  members 
vote  on  many  of  them,  and  most  of  them  are  rushed 
through  by  unanimous  consent  without  any  discussion 
whatever.  The  gavel  passes  the  law,  the  clerk  records 
it.  So  hasty  and  careless  are  the  methods  of  legislation 
that  the  Dingley  Tariff  Bill,  which  filled  163  printed 
pages  and  imposed  duties  upon  more  than  4,000  sepa- 
rate articles  of  import,  introduced  at  the  opening  of  the 
session  in  the  House  on  March  15,  1897,  in  less  than  two 
weeks  was  passed  and  transmitted  to  the  Senate,  only 
twenty-two  pages  of  it  having  been  considered  and  dis- 
cussed upon  the  floor  of  the  House.  So  carelessly  and 
hastily  was  the  work  done  that  the  sections  relating  to 


172  FEDERAL    USURPATION 

tobacco  rebates  were  omitted,  and  the  President  actually 
signed  a  different  bill  from  the  one  passed  by  Congress. 
Hidden  away  in  the  free  list  were  provisions  providing 
for  a  duty  on  anthracite  coal  and  petroleum,  and  when 
the  matter  became  public  not  a  member  of  the  House 
would  admit  that  he  knew  there  were  any  such  pro- 
visions in  the  bill.  Within  twenty-four  hours  after  Presi- 
dent Cleveland's  message  in  the  Venezuela  matter  Con- 
gress unanimously  approved  his  action  and  declared 
defiance  to  Great  Britain.  It  eventually  turned  out  that 
Great  Britain  was  right,  and  that  it  was  a  matter  which 
should  have  been  carefully  investigated.  On  December 
14,  1907,  thirteen  days  after  the  opening  of  the  present 
Congress,  the  dispatches  from  Washington  tell  us  that 
123  of  the  proposed  bills  thus  far  introduced  at  the  pres- 
ent session  of  Congress  are  already  laws,  of  the  exist- 
ence of  which  apparently  their  proposers  are  ignorant. 

The  House  of  Representatives  and  the  Senate  to-day 
are  governing  the  Philippines,  the  Canal  Zone,  and 
Cuba  through  the  War  Department;  Hawaii,  Alaska, 
and  the  territories  within  the  United  States  through  the 
Interior  Department;  and  Guam  and  Tutilia  through  the 
Navy  Department,  while  Porto  Rico. is  left  neither  as 
a  state  nor  a  territory.  Does  such  confusion  of  gov- 
ernment bespeak  wisdom?  Is  it  strange  that  the  chap- 
lain of  Congress  is  said  to  close  each  succeeding  session 
with  the  general  confession :  "  We  have  done  those 
things  we  ought  not  to  have  done;  we  have  left  undone 
those  things  we  ought  to  have  done.  Spare  us,  good 
Lord,  miserable  sinners." 

But   the  worst  feature   of   such   lawmaking  by   the 


CONGRESSIONAL    USURPATION  173 

Speaker  of  the  House  is  found  in  its  effects  upon  the 
members.  The  tendency  upon  the  individual  member 
is  to  destroy  his  self-respect  and  his  sense  of  responsibil- 
ity to  his  constituents.  All  his  aspirations  for  fame  are 
quenched  by  these  despotic  methods.  There  is  no  longer 
any  opportunity  in  the  House  for  an  honorable  career 
through  the  manly  art  of  oratory,  or  the  ability  to  dis- 
cuss wisely  public  questions.  The  Speaker  cracks  his 
whip  over  the  members,  keeping  them  continually  in 
subjection  by  their  desire  for  the  one  avenue  of  prom- 
inence— appointment  to  an  important  committee.  Take 
hope  and  opportunity  for  advancement  away  from  a  man 
and  you  destroy  all  the  springs  of  effort.  Napoleon  well 
understood  this  when  he  said  that  every  French  soldier 
carried  a  Marshal's  baton  in  his  knapsack.  And  the 
Catholic  Church  has  always  appreciated  it,  for  it  can  be 
truly  said  that  every  son  of  the  Church  carries  the  red 
hat  of  a  Cardinal  in  his  cowl. 

Speaker  Reed  was  well  aware  of  the  one  ambition 
of  the  members,  so  when  the  Dingley  Bill  had  been  sent 
to  the  Senate  in  March,  1897,  he  postponed  the  appoint- 
ment of  the  committees,  holding  them  in  abeyance  over 
the  members  until  the  return  of  the  bill  and  its  passage. 
It  was  not  until  the  24th  day  of  July,  when  the  Dingley 
Bill  had  become  a  law,  and  when  the  measures  in  it 
objectionable  to  the  Speaker  had  been  abandoned,  that 
he  finally  consented  to  make  up  the  committees.  He 
well  knew  that  until  he  appointed  those  committees 
the  future  of  every  member  of  the  House  was  in  his 
keeping,  and  therefore  the  member  to  some  extent 
would  be   subservient    to   his   will,    and   knowing   this. 


174  FEDERAL   USURPATION 

he  kept  himself  in  a  position  where  he  could  coerce 
the  whole  House  and  thus  become  the  real  legislating 
power. 

Limit  the  number  of  bills  which  can  be  introduced 
in  the  House;  permit  each  bill  to  be  openly  and  fully 
discussed,  and  the  members,  once  liberated  from  auto- 
cratic rule,  would  become  eager  to  understand  the  merits 
and  demerits  of  a  bill  and  to  achieve  a  record  for  able 
discussion  of  public  matters.  The  people  would  become 
interested  in  the  legislation  of  the  House,  the  newspapers 
would  give  prominence  to  its  discussions,  and  it  would 
become  again  a  democratic  body  reflecting  the  feelings, 
opinions,  emotions,  and  impulses  of  the  whole  country. 
Democratic  government  is  either  a  failure,  and  should 
be  abandoned,  or  such  an  institution  should  be  destroyed 
in  order  that  the  people  once  more  may  become  an  active 
part  of  the  government.  A  democratic  republic  cannot 
live  without  discussion. 

At  the  time  of  the  Constitutional  Convention,  in  1787, 
in  the  ten  states  in  which  there  were  two  chambers  in 
the  legislature,  the  basis  of  representation  in  the  Senate 
was  the  possession  of  taxable  property,  and  in  most 
states  a  considerable  amount  of  wealth  was  required,  in 
order  to  entitle  its  owner  to  vote  for  a  state  senator. 
The  great  weight  of  opinion  in  the  Convention  framing 
the  Constitution  favored  the  selection  of  the  Senate  in 
such  a  manner  as  to  make  it  representative  of  property. 
Gouverneur  Morris,  embodying  that  sentiment,  said: 
"  The  Senate  should  be  composed  of  men  of  great  and 
established  property,  not  liberty  but  property  is  the  main 
object  of  society.     The  savage  state  is  more  favorable 


CONGRESSIONAL   USURPATION  175 

to  liberty  than  the  civilized  state,  and  was  only  renounced 
for  the  sake  of  property."  ^ 

Under  Augustus  no  man  was  eligible  to  the  Roman 
Senate  who  possessed  less  than  a  sum  equal  to  $250,000. 
The  most  of  our  United  States  senators  have  amassed 
considerable  fortunes  in  trade,  commerce,  or  manufac- 
tures, and  desire  above  all  things  for  themselves  and  for 
their  families  social  position.  Senators  who  have  pros- 
pered during  recent  years  naturally  are  allied  closely 
with  the  economic  conditions  of  our  time,  and  are  op- 
posed to  any  change,  however  unjust  the  conditions  may 
be  toward  the  mass  of  the  people. 

A  considerable  number  of  senators  have  for  many 
years  been  largely  interested  in  industries  dependent  upon 
protective  tariffs  and  special  laws,  and  are  to-day  finan- 
cially interested  in  trusts  dependent  upon  special  legis- 
lation. The  English  House  of  Commons,  in  the  reign 
of  Charles  I,  by  resolution  prohibited  persons  who  were 
the  owners  of  interests  in  monopolies  from  sitting  in  the 
Commons,  and  made  it  the  duty  of  each  member  if  he 
knew  of  a  fellow-member  who  belonged  to  a  monopoly, 
to  publicly  name  him  in  the  house  so  that  he  might  be 
expelled.^    The  power  of  the  Senate  also  consists  in  its 

>  Elliot's  Deb.,  vol.  v,  pp.  278,  279. 

^Resolved,  "That  all  projectors  and  monopolists  whatsoever; 
or  that  have  any  share  or  have  had  any  share,  in  any  monop- 
olies; or  that  do  receive,  or  lately  have  received,  any  benefit 
from  any  monopoly  or  project;  or  that  have  procured  any  war- 
rant or  command  for  the  restraint  or  molesting  of  any  that  have 
refused  to  conform  themselves  to  any  such  proclamations  or 
projects;  are  disabled  by  order  of  this  House  to  sit  here  in  this 
House;  and  if  any  man  here  knows  any  monopolist,  that  he  shall 
nominate  him ;  that  any  member  of  this  House  that  is  a  monop- 


176  FEDERAL    USURPATION 

compactness.  A  small  House  is  apt  to  possess  more 
firmness  than  a  large  one,  and  is  apt  to  feel  its  interests 
distinct  from  those  of  the  great  body  of  the  people. 

Besides,  the  Senate  is  closely  allied  with  the  Presi- 
dent in  the  exercise  of  the  greatest  national  powers  ex- 
isting to-day,  the  confirmation  of  treaties  with  foreign 
powers,  which  has  come  to  mean  the  making  of  treaties 
by  the  Senate,  and  confirmation  of  the  appointments  of 
the  President,  which  likewise  has  come  to  mean  appoint- 
ments by  the  different  Senators.  George  Mason,  in  the 
Virginia  Convention  for  the  adoption  of  the  Constitu- 
tion, said :  "  It  has  been  wittily  observed  that  the  Con- 
stitution has  married  the  President  and  Senate — has  made 
them  man  and  wife.  I  believe  the  consequence  that  gen- 
erally results  from  marriage  will  happen  here.  They 
will  be  continually  supporting  and  aiding  each  other: 
they  will  always  consider  their  interest  as  united.  We 
know  the  advantage  the  few  have  over  the  many.  They 
can  with  facility  act  in  concert,  and  on  a  uniform  sys- 
tem ;  they  may  join,  scheme,  and  plot  against  the  people 
without  any  chance  of  detection.  The  Senate  and 
President  will  form  a  combination  that  cannot  be  pre- 
vented by  the  representatives.  The  executive  and  legis- 
lative powers,  thus  connected,  will  destroy  all  balances."  ^ 

While  the  character  of  representative  government  in 
Europe  has  become  more  and  more  powerful  through  the 

olist  or  projector  shall  repair  to  Mr.  Speaker  that  a  new  war- 
rant may  issue  forth;  or  otherwise,  that  he  shall  be  dealt  with 
as  with  a  stranger,  that  hath  no  power  to  sit  here." 

(See  The  English  Patents  of  Monopoly,  by  WilUam  Hyde 
Price,  1906.) 

•  Elliot's  Deb.,  vol.  iii,  pp.  493,  494. 


CONGRESSIONAL   USURPATION  177 

popular  branch  of  the  legislature,  the  United  States  Sen- 
ate has  become  the  strongest  power  in  our  government 
because  of  these  vast  executive  powers  conferred  upon 
it,  and  because  materialistic  forces  are  so  influential  in 
our  country.  The  House  of  Representatives  has  become 
only  a  checking  body  upon  the  power  of  the  Senate,  and 
a  very  weak  one  at  that.  Little  by  little  for  the  last  forty 
years  the  Senate  has  been  increasing  its  power.  The 
right  to  originate  bills  for  the  raising  of  revenue  is  con- 
ferred upon  the  House,  and  the  Senate  has  only  the 
power  to  propose  or  concur  with  amendments.  This 
provision  of  our  Constitution  was  taken  from  the  English 
system,  where  for  hundreds  of  years,  in  a  single  bill, 
the  House  of  Commons  provided  for  the  raising  of 
revenue,  and  in  the  same  bill  prescribed  the  specific 
purposes  for  which  the  revenue  should  be  applied.  Un- 
doubtedly, this  provision  was  intended  to  cover  appro- 
priation bills,  as  well  as  distinct  measures  for  the  rais- 
ing of  revenue ;  however,  bills  for  the  raising  of  revenue, 
and  bills  for  the  appropriation  of  public  moneys,  passed 
by  the  House,  are  often  amended  in  the  Senate  by  cut- 
ting out  the  main  part  of  the  bill,  aside  from  the  enacting 
clause,  and  then  making  a  new  bill. 

The  Senate  made  634  changes  in  the  House  meas- 
ure known  as  the  Wilson  Bill,  in  1894.  Nearly  all 
of  these  amendments  increased  the  duty  on  foreign 
imports.  When  the  Dingley  Bill  of  1907  was  returned 
to  the  House  of  Representatives,  it  contained  870  amend- 
ments, being  practically  a  new  bill.  In  1872  the  House 
passed  a  bill  abolishing  the  duties  on  tea  and  coffee.    The 

Senate  amended  the  bill  by  imposing  duties  upon  4,0CX) 
13 


178  FEDERAL   USURPATION 

or  5,000  different  articles,  and  the  House,  instead  of 
resenting  this  infringement  of  its  rights,  passed  the 
bill  upon  its  return.  In  1883  the  House  passed  a  bill 
for  the  reduction  of  a  few  internal  taxes ;  the  Senate 
amended  it  by  imposing  duties  on  thousands  of  imports, 
and  returned  it  to  the  House.  The  protectionists  in  the 
House,  by  an  adroit  maneuver,  succeeded  in  having  the 
bill  referred  to  a  conference  committee;  and  this  con- 
ference committee,  not  the  House,  to  which  the  Consti- 
tution had  given  the  right,  but  a  mere  conference  com- 
mittee, imposed  burdensome  duties  upon  about  5,000  ar- 
ticles of  import. 

Jefferson  said  of  the  power  of  the  Senate  to  refuse 
to  concur  with  the  President  in  appointments  to  office, 
that  the  Senate  should  only  see  that  no  unfit  person  was 
appointed.  The  Senate  now,  however,  has  reached  the 
point  where  it  dictates  appointments  to  the  President, 
and  then  ratifies  its  own  appointees.  Step  by  step  it  has 
reduced  the  members  of  the  House  of  Representatives 
to  a  kind  of  vassalage.  H  a  representative  desires  to 
procure  an  appointment  of  a  man  from  his  district  to  a 
public  office  he  appeals  to  his  Senator  for  aid,  and  in  re- 
turn he  surrenders  to  some  extent  his  independence.  Not 
only  is  this  true,  but  so  weak  is  the  ordinary  member, 
especially  the  newer  members  of  the  House,  under  the 
despotic  methods  of  the  Speaker,  that  they  frequently 
resort  to  the  Senators  from  their  states  to  procure  ap- 
propriations for  their  districts,  by  amendment  to  an  ap- 
propriation bill  sent  to  the  Senate  from  the  House. 

The  Senate  no  longer  confirms  treaties ;  it  recon- 
structs treaties  made  by  the  President.     It  rejected  the 


CONGRESSIONAL   USURPATION  179 

Olney-Pauncefote  Arbitration  treaty,  the  Hay-Paunce- 
fote  Canal  treaty,  the  Newfoundland  Reciprocity  treaty. 
It  did  not  report  upon  the  French  Reciprocity  treaty, 
and  about  ten  other  reciprocity  treaties  with  different 
countries ;  and  it  allows  no  treaty  to  pass  without  modi- 
fying it  so  that  it  becomes  practically  a  treaty  made  with 
the  Senate. 

By  means  of  the  power  of  dictating  the  President's 
appointments  in  their  own  states,  by  their  control  of 
the  appointments  desired  by  members  of  the  House  of 
Representatives,  and  by  reason  of  their  close  relations 
with  railways,  monopolies,  and  the  general  corporate  in- 
terests of  the  country,  the  Senators  have  built  a  gigan- 
tic machine  in  each  state  whereby  they  control  the 
patronage  of  their  state,  create  a  following  among  the 
politicians,  and  grant  favors  to  the  corporate  interests 
which  they  represent  in  both  state  and  nation.  In 
every  state  that  department  which  proves  in  practice  the 
strongest  will  push  its  jurisdiction  farthest.  These  mas- 
ters of  the  great  political  machines  of  their  states  sit 
in  their  seats  in  the  United  States  Senate  with  a  large 
part  of  the  patronage  of  the  government  in  their  hands, 
as  mighty  a  power  and  at  the  same  time  as  corrupt  a 
power  as  Walpole,  master  of  bribery.  The  close  bond 
between  the  President  and  the  Senate  is  patronage. 
Through  this  the  President,  to  some  extent,  is  enabled 
to  control  the  Senate ;  and  the  Senate,  to  a  considerable 
extent,  to  control  the  President.  The  result  naturally 
follows  that  the  two  powers  act  in  concert;  and  to- 
gether they  destroy  all  equilibrium  between  the  branches 
of  the  government,  override  the  House  of  Representa- 


i8o  FEDERAL   USURPATION 

tives,  and  exercise  more  or  less  influence  over  the 
courts. 

Now  let  us  consider  the  checks  upon  legislation.  A 
proposed  law  introduced  in  the  House  of  Representa- 
tives may  be  killed  by  the  committee  to  which  it  is  re- 
ferred. If  it  is  reported  by  that  committee  it  may  be 
destroyed  by  the  committee  on  rules.  If  it  escapes  the 
committee  on  rules  it  may  be  defeated  by  the  Speaker. 
If  it  passes  over  all  these  obstructions  and  is  passed  by 
the  House  and  sent  to  the  Senate  it  may  be  defeated  in 
one  of  the  committees  of  the  Senate.  If  it  reaches  the 
Senate  with  the  approval  of  the  committee  it  may  be 
defeated  by  the  Senate.  If  it  passes  both  Houses  it 
may  be  vetoed  by  the  President.  If  then  passed  by  a 
majority  of  two  thirds  of  each  House  it  may  be  de- 
clared null  and  void  by  the  United  States  Supreme 
Court.  Was  ever  a  system  so  cumbersome,  so  calcu- 
lated to  defeat  the  will  of  the  people,  so  great  a  shelter 
for  corruption,  created  by  the  perverse  ingenuity  of 
man  ?  The  Nation  says :  "  There  is  somewhere  in  the 
reports  of  our  courts  the  history  of  a  private  claim  of 
unquestionable  merit,  which  was  passed  without  op- 
position ten  times  by  one  House  and  fourteen  by  the 
other,  and  yet  never  succeeded  in  getting  through  both 
Houses  of  the  same  Congress."  ^ 

Until  the  Civil  War,  government  in  the  House  of 
Representatives  was  carried  on  by  discussion.  Men  were 
elected  in  those  days  because  they  were  able  to  present 
matters  forcibly  in  debate  and  to  discuss  public  ques- 
tions upon  their  merits.  With  the  corruption  which 
'  The  Nation,  xvi,  145. 


CONGRESSIONAL    USURPATION  i8l 

came  in  at  the  time  of  the  Civil  War  and  the  concen- 
tration of  great  interests  in  the  hands  of  a  few  men, 
came  the  concentration  of  power  in  the  hands  of  a  few 
leaders  in  the  House.  It  became  the  motto  "  to  do 
things  " ;  to  handle  a  large  amount  of  business ;  to  pass 
acts  without  discussion ;  to  accomplish  results.  With 
this  tendency  the  prestige  of  the  House  has  gradually- 
disappeared.  The  Senate  much  more  wisely  has  put  no 
limits  upon  discussion  and,  notwithstanding  its  close 
alliance  with  corporate  interests  and  its  secret  executive 
sessions,  it  is  still  a  more  democratic  body  than  the 
House;  but  House  and  Senate  will  reform  themselves 
from  within  or  eventually  there  will  be  a  reform  from 
without.  If  the  House  of  Representatives  is  truly  to 
represent  the  people  its  bills  must  be  confined  to  public 
matters,  it  must  not  attempt  to  examine  more  than  a  few 
hundred  measures  during  each  Congress,  and  it  must 
discuss  these  publicly.  We  wish  no  Spartan  assembly 
with  its  contempt  for  talkers.  Discussion  is  the  life  of 
free  government  and  without  discussion  it  will  not  long 
continue. 

The  kind  of  government  which  we  have  been  re- 
viewing is  exactly  the  kind  of  government  where  the 
people  can  know  but  little  about  what  is  going  on,  and 
gradually  will  become  indifferent  to  public  affairs  be- 
cause of  their  lack  of  knowledge.  Behind  government 
by  committees,  which  carry  on  their  work  in  secret,  have 
naturally  arisen  usurpations  of  government.  Those 
usurpations  have  been  going  on  so  long  as  to  have  be- 
come a  normal  condition.  In  the  President's  message 
to  the  Fifty-seventh  Congress,  speaking  of  the  Depart- 


l82  FEDERAL    USURPATION 

ment  of  Agriculture,  he  says :  "  It  has  gone  into  new 
fields  until  it  is  now  in  touch  with  all  sections  of  our 
country."  Indeed  it  has  gone  into  new  fields.  The 
Department  of  Agriculture  dates  from  1862  in  the  midst 
of  the  Civil  War,  a  time  of  great  usurpation.  It  con- 
sisted of  the  Commissioner  of  Agriculture,  a  statistician, 
a  chemist,  an  entomologist,  a  superintendent  of  the 
propagating  garden  and  experimental  farm.  In  1868 
a  botanist  was  appointed,  and  in  1871  a  microscopist ; 
in  1877  ^  forestry  division  was  created,  then  a  division 
for  the  investigation  of  animal  diseases ;  in  1884  a 
special  bureau  of  animal  industry  was  established,  and 
in  1887  agricultural  experimental  stations  were  estab- 
lished throughout  the  country.  In  1889  ^^^  Department 
of  Agriculture  was  raised  to  the  rank  of  an  executive 
department,  and  its  head  became  the  Secretary  of  Agri- 
culture and  was  given  a  seat  in  the  President's  Cabinet. 
From  that  time  the  department  has  grown  rapidly.  The 
weather  bureau,  a  department  having  control  of  irriga- 
tion, a  department  having  control  of  roads,  a  bureau  of 
chemistry,  a  bureau  of  soils,  a  bureau  of  statistics,  and 
the  division  of  biological  survey  have  all  come  into  ex- 
istence. 

To-day  it  is  carrying  on  a  thousand  undertakings 
and  spending  millions  of  dollars  each  year  for  purposes 
which  cannot  find  a  single  line  or  word  in  the  Con- 
stitution justifying  their  expenditure.  There  has  not 
been  in  the  history  of  our  country  such  extensive  and 
clear  examples  of  usurpation  as  every  department  and 
every  work  connected  with  the  Department  of  Agri- 
culture  furnishes,   if  we  except  alone  its   undertakings 


CONGRESSIONAL    USURPATION  183 

relating  to  interstate  or  foreign  commerce.^  The  De- 
partment of  Forestry,  engaged  in  a  work  of  the  greatest 
national  importance  and  doing  that  work  with  the  most 
admirable  results  for  the  country,  and  the  Department 
having  charge  of  quarantines  against  the  importation  of 
diseased  cattle  or  their  transfer  from  one  state  to  an- 
other, may  find  some  justification  for  their  existence  in 
the  control  of  Congress  over  interstate  and  foreign 
commerce,  but  aside  from  these  there  is  not  a  provision 
in  the  Constitution  giving  a  foundation  for  even  an  in- 
ference authorizing  the  appropriations  for  agriculture. 
Chief  Justice  Marshall  says :  ^  "  The  powers  of  the  leg- 
islature "  (referring  to  Congress)  "  are  defined  and 
limited;  and,  that  those  limits  may  not  be  mistaken  or 
forgotten,  the  Constitution  is  written.  To  what  purpose 
are  powers  limited  and  to  what  purpose  is  that  limitation 
committed  to  writing,  if  these  limits  may  at  any  time 
be  passed  by  those  intended  to  be  restrained.  The  dis- 
tinction between  a  government  with  limited  and  unlim- 
ited powers  is  abolished,  if  those  limits  do  not  confine 
the  persons  on  whom  they  are  imposed,  and  if  acts  pro- 
hibited and  acts  followed  are  of  equal  obligation.". 

If  there  is  no  express  grant  of  power  in  the  Con- 
stitution which  confers  the  control  of  agriculture  upon 
the  national  government,  surely  everyone  will  concede 
that  no  such  power  exists.  The  thousands  of  different 
powers  exercised  by  the  Department  of  Agriculture  are 
powers  which  would  belong  to  the  states,  unless  they 
were  conferred  by  the  Constitution,  since  they  have  to 

'  American  Law  Review,  vol.  xxx,  p.  787. 
» Marbury  v.  Madison,  i  Cranch,  137. 


l84  FEDERAL    USURPATION 

do  with  domestic  affairs  alone.  Now  such  express 
powers  cannot  be  found  in  the  Constitution.  In  this 
connection  it  is  interesting  to  see  that  the  Convention 
which  framed  the  Constitution  discussed  this  very  ques- 
tion. On  August  1 8,  1787,  it  was  proposed  to  vest  in 
the  national  government  the  right  "  to  establish  pub- 
lic institutions,  rewards,  and  immunities  for  the  purpose 
of  agriculture,  trades,  and  manufactures,"  and  this  was 
rejected.  At  the  same  time  it  was  proposed  "  to  estab- 
lish a  university  to  encourage  by  proper  premiums  and 
provisions  the  advancement  of  useful  knowledge  and 
discoveries,"  and  this  likewise  was  rejected.^  It  was 
also  proposed  to  authorize  Congress  to  grant  charters  of 
incorporation  in  cases  where  the  public  good  might  re- 
quire them,  and  this  also  failed.  Thus  the  precise  power 
which  the  Department  of  Agriculture  exercises  was  re- 
jected in  the  Constitutional  Convention,  and  still,  in  the 
Civil  War,  a  little  over  seventy  years  later,  we  find  the 
government  establishing  this  bureau. 

Let  us  see  the  kind  of  work  which  is  being  done  by 
this  department.  In  a  bulletin  issued  by  the  Chief  of 
the  Division  of  Publications  on  January  19,  1907,  this 
department  calls  to  the  attention  of  the  farmers  its  pub- 
lications on  about  a  thousand  different  subjects,  including 
the  cost  of  raising  calves,  the  feeding  of  chickens,  the 
control  of  coddling  moths,  the  cooking  of  meats,  the 
cooking  of  vegetables,  the  growing  of  cucumbers,  the 
control  of  the  boll  weevil,  the  use  of  skim  milk  for  feed- 
ing calves,  the  feeding  of  ducks,  the  remedy  for  flies  on 
cows,  the  growing  of  peanuts,  the  building  of  hogpens, 
1  Elliot's  Deb.,  vol.  i,  p.  247. 


CONGRESSIONAL    USURPATION  185 

the  feeding  of  hogs,  the  clearing  of  flies  from  houses,  the 
making  of  jellies,  the  shearing  of  lambs,  the  management 
of  pigs,  the  raising  cost  of  pigs,  the  making  of  pre- 
serves, the  use  of  skim  milk  in  breadmaking,  and  hun- 
dreds of  other  like  matters. 

Under  the  provisions  of  an  act  of  Congress  of  June 
30,  1906,  $82,500  was  appropriated  to  enable  the  Secre- 
tary of  Agriculture  to  undertake  experimental  work  in 
eradicating  ticks  which  transmitted  southern  cattle 
fever.  Inspectors  were  sent  out  in  groups  of  about  a 
dozen  on  horseback,  with  lassos  Hke  cowboys,  to  rope 
and  examine  the  cattle  in  Texas^  Missouri,  Arkansas, 
Louisiana,  Kentucky,  and  other  states.  The  report  of 
the  Secretary  of  Agriculture  says :  "  They  covered  their 
territory  systematically,  roping  and  examining  cattle 
wherever  found,  and  informing  the  owners  of  infested 
cattle  of  the  most  practical  method  of  getting  rid  of  the 
ticks."  ^  The  fecundity  of  sows  was  another  object 
which  this  department  investigated  in  the  year  1905-6. 
An  investigation  of  fifty-five  thousand  litters  was  made 
and  the  Secretary  of  Agriculture  assures  us  that  the  in- 
vestigations are  to  be  followed  with  a  statement  of  the 
inheritance  of  fecundity.^  Investigations  with  a  view  to 
developing  a  strain  of  chickens  with  increased  egg-lay- 
ing capacity  were  also  carried  on  extensively  in  that 
year.  Experiments  as  to  animal  nutrition,  as  to  feeding 
cottonseed  products  to  hogs,  as  to  the  production  and 
handling  of  milk,  as  to  the  making,  maturing,  and  stor- 
ing of  cheese,  were  extensive  and  costly.     The  pear 

•  Report  of  December,  1906,  pp.  20,  21. 
2  Report  of  December,  1906,  p.  24. 


1 86  FEDERAL    USURPATION 

blight,  the  peach  bHght,  the  growth  of  melons,  and  hun- 
dreds of  other  such  subjects  were  investigated  at  the  cost 
of  hundreds  of  thousands  of  dollars  in  that  year.  Ex- 
tensive experiments  were  made  with  tobacco  wrappers 
for  the  aid  of  the  Connecticut  valley  tobacco  interests. 
This  prolific  department  seems  to  be  ambitious  to 
encourage  the  production  of  tea  in  this  country,  for  it 
carried  on  in  that  year  extensive  investigations  in  South 
Carolina  for  the  purpose  of  determining  the  possibilities 
of  the  commercial  production  of  tea.  Seven  million 
packages  of  miscellaneous  vegetable  and  flower  seed 
were  bought  in  the  general  market  and  sent  out  during 
the  year  to  farmers.  Waters  used  as  beverages  were  ex- 
amined, and  one  hundred  and  fifty-four  samples  of  cattle 
food  were  analyzed  to  determine  the  quality  of  cattle 
foods  sold  upon  the  markets.  The  subject  of  tanning 
and  the  effects  of  different  tanning  materials  upon  the 
character,  quality,  and  durability  of  leather  were  investi- 
gated, apparently  for  the  benefit  of  the  leather  trust.  At 
Fresno,  Cal.,  in  the  Yakima  Valley  in  Washington,  and 
in  the  Yellowstone  Valley  in  Montana,  extensive  experi- 
ments were  made  in  soaking  the  alkali  out  of  the  land 
and  studying  the  drainage  system.  The  damages  caused 
by  the  rabbit  pest  in  orchards,  by  the  boll  weevil  in  cot- 
ton, and  by  the  gypsy  moth  in  Massachusetts,  were  also 
investigated.  The  United  States  likewise  has  taken  hold 
of  the  question  of  good  roads,  and  it  appears  that  during 
the  year  1905-6  seventeen  roads  were  built  in  eleven 
states.  Now  I  undertake  to  say  with  all  positiveness 
that  no  good  authority  for  any  of  these  works  can  be 
found  in  the  Constitution,  and  yet  the  United  States 


CONGRESSIONAL   USURPATION  187 

government,  for  the  year  ending  June  30,  1907,  devoted 
to  the  Agricultural  Department  upward  of  $10,000,000, 
besides  several  hundred  thousand  dollars  of  what  are 
called  emergency  appropriations. 

The  United  States  Supreme  Court  in  a  recent  de- 
cision has  held  that  no  powers  are  conferred  upon  the 
national  government  to  expend  money  in  irrigation  for 
the  several  states.^  Justice  Brewer,  writing  the  opin- 
ion, says :  "  Turning  to  the  enumeration  of  the  powers 
granted  to  Congress  by  the  8th  Section  of  the  ist  Arti- 
cle of  the  Constitution,  it  is  enough  to  say  that  no 
one  of  them  by  any  implication  refers  to  the  reclamation 
of  arid  lands,"  On  June  17,  1902,  Congress  passed  an 
act  authorizing  the  construction  of  irrigation  works  by 
the  national  government  in  California,  Colorado,  Idaho, 
Kansas,  Montana,  Nebraska,  Nevada,  North  Dakota, 
Oregon,  Washington,  and  several  other  states.  The 
project  contemplated  the  forming  of  a  water-users' 
association  in  all  of  these  states,  and  the  sale  to  them 
by  the  national  government  of  water  from  its  reser- 
voirs. The  moneys  received  from  the  sale  of  public 
lands  was  devoted  to  the  purpose  of  erecting  the  tun- 
nels and  dams  for  a  large  number  of  irrigation  works, 
and  on  September  30,  1906,  $15,456,900.13  had  been 
expended  in  their  creation,  while  $39,155,161  had  been 
allotted  for  their  erection  in  sixteen  different  states  and 
territories. 

The  Secretary  of  the  Interior,  in  his  last  report,  says : 
"  One  of  the  important  points  which  has  already  devel- 
oped is  that  greater  protection  must  be  offered  by  law 
'  Kansas  v.  Colorado,  206  U.  S.,  87-90. 


i88  FEDERAL   USURPATION 

to  the  works  when  finished.  There  is  no  Federal  statute 
which  can  he  invoked  to  protect  these  works,  and  the 
local  statutes  vary  in  different  states  and  territories."  * 
Why  is  it  that  no  Federal  statute  can  be  invoked  to  pro- 
tect these  works  and  that  local  statutes  are  the  only 
protection?  The  answer  is  simply  this:  The  United 
States  government  has  no  authority  in  the  Constitu- 
tion to  spend  a  dollar  for  the  erection  of  these  plants,  or 
to  enter  the  business  of  gathering  water  and  selling  it  to 
farmers,  and  if  a  Federal  statute  was  passed  to  protect 
such  works,  any  attempt  to  punish  a  man  under  it  would 
result  in  the  courts  declaring  it  unconstitutional.  The 
government  has  entered  upon  this  enterprise  simply  for 
the  purpose  of  attaching  to  it  millions  of  farmers  scat- 
tered through  these  states,  well  knowing  that  every  dol- 
lar of  the  public  moneys  used  in  this  way  is  wrongfully 
diverted  from  the  public  treasury  and  wrongfully  con- 
verted by  Congress. 

Congressman  Wadsworth,  Chairman  of  the  Commit- 
tee on  Agriculture  in  the  last  Congress,  commented  at 
length  on  the  tendency  of  the  Department  of  Agriculture 
to  usurp  powers  of  the  state  governments.  The  House 
was  considering  the  Nelson  Amendment,  increasing 
the  agricultural  appropriations,  and  Mr.  Wadsworth 
said  that  the  practice  presented  a  serious  menace  to 
local  control,  when  considered  in  connection  with  bills 
now  pending  before  the  Committee  on  Agriculture.  He 
stated  that  those  bills  included  aid  to  state  normal 
schools,  district  agricultural  colleges,  mechanical  and 
state  high  schools ;  and  he  added  that,  if  appropriations 
'  Report,  December,  1906,  p.  102. 


CONGRESSIONAL    USURPATION  189 

were  made  for  such  purposes,  by  and  by  they  would 
be  extended  to  grade  schools  and  then  "  you  will  have 
Federal  control  and  supervision  of  your  public  schools." 
Mr.  Tawney,  Chairman  of  the  Committee  of  the  House 
on  Appropriations,  said:  "  If  we  continue  this  system  of 
paternalism  much  longer,  it  will  not  be  long  until  Con- 
gress will  be  swept  off  its  feet  and  called  upon  to  account 
for  from  $25,000,000  to  $50,000,000  annually  for  the 
construction  and  maintenance  of  good  roads." 

In  the  last  Congress  there  was  considerable  discus- 
sion about  creating  a  new  Department  of  Hygiene,  and 
giving  the  head  of  this  Department  a  place  in  the  cabi- 
net. At  the  rate  we  are  going,  within  twenty  years  most 
of  the  powers  of  the  states  will  be  usurped  by  the  gen- 
eral government.  In  like  manner  the  government  is 
devoting  large  sums  of  money  to  the  advancement  of 
memorial  and  historical  associations,  to  the  maintenance 
of  a  Bureau  of  Education,  to  the  aid  of  communities 
suffering  from  extraordinary  catastrophes,  and  for 
numerous  similar  objects.  It  simply  usurps  this  power 
because  the  people  are  quiet  and  do  not  protest. 

On  March  8,  1898,  ten  days  before  the  President  sent 
to  Congress  the  report  of  the  Naval  Board  of  Inquiry 
on  the  destruction  of  the  Maine,  the  House  of  Repre- 
sentatives at  a  single  sitting  and  with  no  debate  what- 
ever, by  a  unanimous  vote  of  313  gave  to  the  President 
of  the  United  States  $50,000,000  to  be  expended  "  For 
the  national  defense  and  for  each  and  every  purpose 
connected  therewith  to  be  expended  at  the  direction  of 
the  President  and  to  remain  available  until  January  i, 
1899."    O"  the  next  day,  March  9th,  the  bill  was  passed 


IQO  FEDERAL   USURPATION 

in  the  Senate  in  one  sitting  and  without  a  word  of  de- 
bate, by  a  unanimous  vote  of  seventy-six.  This  was 
said  to  be  the  third  occasion  since  the  Civil  War  on 
which  Congress  had  been  unanimous  about  anything.* 

Such  a  vote  of  public  money  probably  was  never 
known  before  in  the  histon,-  of  constitutional  govern- 
ment. Congress  certainly  had  no  power  to  vote  the 
money  in  that  manner.  The  grants  of  money  by  Con- 
gress must  declare  in  the  bill  granting  them  the  specific 
ends  and  purposes  of  the  grants ;  an  express  appropria- 
tion of  this  money  to  a  particular  purpose  was  essen- 
tial to  the  very  validity  of  the  grant  This  has  been 
the  practice  of  Congress  during  the  whole  period  of 
our  constitutional  history,  and  the  practice  of  the  Eng- 
lish House  of  Commons  for  five  hundred  years.  Yet, 
notwithstanding  this,  Congress  invested  the  Chief  Mag- 
istrate with  absolute  discretion  in  expending  this 
money.  The  framers  of  the  Constitution  believed  that 
specific  appropriations  should  be  made,  because  they 
feared  if  it  were  other\vise  the  executive  would  possess 
an  unbounded  power  over  the  public  purse  of  the  na- 
tion. This  act,  turning  the  money  over  to  the  Presi- 
dent, is  simply  an  example  of  the  recent  acts  of  Con- 
gress, placing  in  him  the  widest  discretion  and  giving 
him  the  opportunity  to  exercise  the  most  arbitrary 
power.  A  more  dangerous  exercise  of  power  could  not 
be  conceived. 

The  suspension  of  the  operation  of  statutes  by  the 
heads    of    departments    is    becoming   common    in    our 

•  Bradford,  Lessons  of  Popular  Government,  vol.  ii,  pp.  508, 
509- 


CONGRESSIONAL   USURPATION  191 

day.  The  late  Secretary  Hitchcock,  of  the  Department 
of  the  Interior,  permitted  the  withdrawal  from  allot- 
ment of  nearly  4,000,000  acres  of  land,  belonging  to  the 
five  tribes  in  the  Indian  Territory,  for  the  purpose  of 
creating  a  forest  reservation,  notwithstanding  the  stat- 
ute forbade  such  action.  The  motive  for  doing  this  was 
undoubtedly  excellent.  The  Secretary  of  Agriculture, 
upon  consulting  with  the  Head  of  the  Department  of 
Forest  Reserves,  in  furtherance  of  the  highest  public 
interests  had  asked  that  this  be  done.  It  is  just  be- 
cause such  unauthorized  powers  are  exercised  for  good 
purposes  that  they  become  dangerous  to  the  public  wel- 
fare. Early  English  kings  frequently  exercised  this 
power  of  suspending  the  observation  of  statutes,  not 
alone  in  favor  of  certain  individuals,  but  for  the  entire 
nation. 

Another  exercise  of  arbitrary  power  is  found  in  the 
passage  of  laws  by  attaching  them  as  riders  to  appro- 
priation bills.  During  the  Fifty-seventh  and  Fifty- 
eighth  Congresses,  574  acts  of  public  permanent  legis- 
lation were  passed,  of  which  176  or  thirty  per  cent  were 
carried  through  as  riders  on  appropriation  bills.  The 
original  act  conferring  jurisdiction  over  navigable  wa- 
ters on  the  Secretary  of  War,  and  giving  him  absolute 
and  unlimited  control  over  wharves,  bridges,  and  other 
structures  in  all  navigable  waters,  by  which  he  can  ex- 
ercise almost  autocratic  power  affecting  hundreds  of 
millions  of  dollars'  worth  of  property,  was  passed  some 
years  ago  by  Congress  as  a  rider  on  an  appropriation 
bill.  It  never  was  reported  separately  by  the  commit- 
tee, and  probably  its  existence  as  a  rider  was  unknown 


192  FEDERAL   USURPATION 

to  most  of  the  members  of  Congress  voting  for  the 
appropriation  bill. 

The  prolific  source  of  much  of  this  legislation  is  the 
eighteenth  subdivision  of  Section  8,  Article  i,  of  the 
Constitution,  which  provides  that  Congress  shall  have 
power  to  "  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  pow- 
ers." Thomas  Jefferson,  in  April,  1800,  writing  to  Ed- 
ward Livingston,  discusses  this  clause  as  follows :  "  The 
House  of  Representatives  sent  us  yesterday  a  bill  to 
work  the  Roosewells*  copper  mines  in  New  Jersey.  I 
do  not  know  whether  it  is  understood  that  the  legis- 
lature of  New  Jersey  was  incompetent  to  do  this,  or 
merely  that  we  have  concurrent  legislation  under  the 
'  sweeping  clause.'  Congfress  is  authorized  to  defend 
the  nation ;  ships  are  necessarj'  to  defense ;  copper  is 
necessary  for  ships ;  mines  necessary  for  copper ;  a  com- 
pany necessary  to  work  mines;  and  who  can  doubt  this 
reasoning  who  ever  played  at  '  This  is  the  House  that 
Jack  Built'?"  The  Congressmen  who  devise  statutes 
to  increase  the  power  of  the  Agricultural  Department 
are  endowed  with  quite  as  great  powers  of  implication 
and  inference  as  the  members  of  that  House  of  Repre- 
sentatives who  provided  for  the  working  of  the  Roose- 
wells' copper  mines  in  New  Jersey. 

The  exercise  of  such  powers  as  we  have  seen  in  the 
Department  of  Agriculture  are  found  in  Russia,  in  the 
German  Empire,  and  in  every  autocratic  government. 
They  are  powers  which  are  moving  us  rapidly  toward 
a  form  of  state  socialism  in  this  country.  It  ^\*ill  not 
be  long  before  compulsory  insurance  of  workmen  by 


CONGRESSIONAL   USURPATION  193 

the  state  against  accident,  sickness,  and  old  age  will 
be  urged  upon  the  attention  of  the  people;  before  we 
will  have  an  inheritance  tax,  adopted  for  socialistic  and 
disciplinary  reasons,  to  reduce  swollen  fortunes,  and 
thus  to  maintain  equality  between  classes.  By  and  by 
no  one  will  imagine  that  any  important  affair  can  be 
properly  carried  on  without  the  interference  of  the 
state;  our  national  government  will  assume  the  place 
of  Providence,  and  all  will  be  invoking  its  aid  for  indi- 
vidual necessities. 

The  absorption  by  Congress  of  the  legitimate  pow- 
ers of  the  states  ought  to  cause  great  discontent  among 
the  people.  If  they  are  not  indignant  at  such  usurpa- 
tion of  the  rights  of  their  states,  they  need  not  com- 
plain if  eventually  the  whole  country  is  ruled  from 
Washington,  and  that  means  one  central  government 
administering  the  laws  for  a  continent  of  3,500,000 
square  miles,  and  a  people  of  100,000,000  population  to- 
gether with  millions  of  colonists.  Such  a  bureaucracy 
has  never  been  known.  To  accomplish  this  result  the 
people  must  be  kept  deluded  with  the  old  idea  that  we 
are  not  only  in  advance  of  all  other  countries  in  all 
matters,  but  that  we  are  the  only  country  in  the  world 
which  has  any  considerable  liberty.  To  avert  such  a 
thing  the  people  must  be  brought  face  to  face  with  the 
facts.  They  must  become-  candid  and  willing  to  see  the 
faults  of  their  government  and  themselves,  even  while 
they  hug  their  virtues.  Jealousy  and  distrust  of  cen- 
tralized power  will  be  found  to  be  the  sentinels  of  the 
people's  liberty. 

14 


VI 

THE   UNITED    STATES   SUPREME   COURT   THE 
ABSOLUTE    POWER 


"The  execution   of  the  laws  is  more   important  than  the 

making  of  them." 

Jefferson. 


"Let  everything  that  is  in  favor  of  power  be  closely  con- 
strued; everything  in  favor  of  the  security  of  the  citizen  and 
the  protection  of  the  individual  comprehensively,  for  the  simple 
reason  that  power  is  power,  it  is  able  to  take  care  of  itself 
and  tends  by  its  nature  to  increase,  while  the  citizen  needs 
protection." 

LlEBER. 


"If  Parliament  changes  the  law  the  action  of  Parliament  is 
known  to  every  man,  and  Parliament  tries  in  general  to  respect 
acquired  rights.  If  the  courts  were  to  apply  to  the  decision  of 
substantially  the  same  case  one  principle  to-day  and  another 
principle  to-morrow,  men  would  lose  rights  which  they  already 
possessed;  a  law  which  was  not  certain  would  in  reality  be  no 
law  at  all." 

Professor  Dicey. 


CHAPTER   VI 

THE   UNITED  STATES   SUPREME   COURT  THE   ABSOLUTE 
POWER 

Martin  Van  Buren  once  said  in  the  Senate: 
"  There  exists  not  upon  this  earth,  and  there  never  did 
exist,  a  judicial  tribunal  clothed  with  powers  so  various 
and  so  important "  as  the  Supreme  Court  of  the  United 
States.^  The  judges  are  appointed  to  the  office  during 
good  behavior,  and  their  fixed  salaries  cannot  be  di- 
minished during  the  term  of  their  office.  The  United 
States  District  and  Circuit  Courts  can  be  abolished  and 
their  powers  conferred  on  other  courts,  but  the  United 
States  Supreme  Court,  a  coordinate  branch  of  the  gen- 
eral government  created  by  the  Constitution,  cannot  be 
legislated  out  of  existence  nor  can  its  judicial  powers 
be  limited  in  any  respect  whatever  by  Congress.  The 
highest  courts  of  all  other  countries  are  dependent  upon 
their  parliaments,  whose  supreme  power  and  authority 
they  must  respect,  but  the  United  States  Supreme 
Court  is  practically  independent  of  the  whole  nation. 
The  Supreme  Court  can  declare  a  statute,  passed  by 
both  branches  of  Congress  and  approved  by  the  Presi- 
dent, void  as  a  violation  of  constitutional  guarantees. 
Or  if  an   act,  vetoed  by  the  President,  has  been   re- 

1  Elliot's  Deb.,  vol.  iv,  p.  485. 
197 


198  FEDERAL   USURPATION 

passed  by  a  two-thirds  majority  of  each  House,  the 
Court  still  can  declare  the  act  repugnant  to  the  Con- 
stitution. History  presents  but  one  example  of  the  ex- 
ercise of  such  power  other  than  by  an  absolute  mon- 
arch. The  tribune  at  Rome,  elected  for  a  year,  had  an 
absolute  veto  upon  any  enactment.  This  powerful  offi- 
cer is  said  not  even  to  have  had  a  house  in  which  to 
administer  his  duties,  but  sat  upon  the  benches  in  the 
open.  In  all  simplicity,  standing  for  the  great  mass  of 
unprotected  Roman  citizens  against  the  power  of  the 
aristocracy,  he  had  the  power  to  declare  the  one  word 
which  would  annul  every  proposed  law  of  the  great 
Roman  Senate. 

Though  not  elected  by  the  people  and  independent  of 
the  nation,  virith  a  permanent  tenure  of  office,  in  the  last 
instance  the  Supreme  Court  has  the  right  to  prescribe 
the  rules  for  the  control  of  the  other  coordinate  depart- 
ments of  government.  It  is  the  constitutional  judge  of 
the  powers  of  Congress  as  well  as  of  its  own  powers. 
"  You  have  made  a  good  Constitution,"  said  a  friend  of 
Gouvemeur  Morris  after  the  adjournment  of  the  Con- 
stitutional Convention.  "  That,"  replied  Morris,  "  de- 
pends on  how  it  is  construed."  ^  This  saying  of  Mr. 
Morris  is  true,  because  the  exclusive  right  to  interpret 
includes  the  power  to  change.  Sajs  a  leading  writer  on 
Constitutional  Law :  "  It  is  one  of  Blackstone's  maxims 
that  in  every  constitution  a  power  exists  which  controls 
without  being  controlled,  and  whose  decisions  are  su- 
preme. This  power  is  represented  in  the  United  States 
by  a  small  oligarchy  of  nine  irremovable  judges.     I  do 

•  Gordy,  Political  Parties  in  the  United  States,  vol.  1,  p.  1 14. 


THE    UNITED    STATES    SUPREME    COURT        199 

not  know  of  any  more  striking  political  paradox  than 
this  supremacy  of  a  nonelectecl  power  in  the  democracy 
reputed  to  be  of  the  extreme  type."  ^ 

Mr.  Dicey  says  of  this  power  conferred  upon  the 
Supreme  Court,  "  That  in  a  confederation  like  the  United 
States  the  Courts  become  the  pivot  on  which  the  con- 
stitutional arrangements  of  the  country  turn  is  obvious. 
Sovereignty  is  lodged  in  a  body  which  rarely  exerts  its 
authority  and  has  (so  to  speak)  only  a  potential  ex- 
istence ;  no  legislature  throughout  the  land  is  more  than 
a  subordinate  lawmaking  body  capable  in  strictness  of 
enacting  nothing  but  by-laws :  the  powers  of  the  ex- 
ecutive are  again  limited  by  the  constitution ;  and  the 
interpreters  of  the  constitution  are  the  judges.  The 
Bench  therefore  can  and  must  determine  the  limits  to 
the  authority  both  of  the  government  and  of  the  leg- 
islature ;  its  decision  is  without  appeal ;  the  consequence 
follows  that  the  Bench  of  Judges  is  not  only  the  guar- 
dian but  also  at  a  given  moment  the  master  of  the 
constitution."  ^  That  branch  of  government  which  is 
its  own  judge  in  determining  authoritatively  for  the 
people  what  are  its  own  powers  over  the  people,  is  ab- 
solute in  its  nature. 

Leading  writers  on  law  have  denied  the  power  of 
the  United  States  Supreme  Court  to  declare  acts  of 
Congress  unconstitutional.^    The  power  in  the  Court  to 

»  Boutmy,  Studies  in  Constitutional  Law,  pp.  117,  118,  Eng. 
Trans. 

»  Dicey,  The  Law  of  the  Constitution,  pp.  170,  171. 

3  Chief  Justice  Gibson,  12  Sergeant  &  Rawle,  330,  356;  Pro- 
fessor Trickett,  Judicial    Nullification  of    Congressional    Acts, 


200  FEDERAL    USURPATION 

declare  a  national  statute  unconstitutional  was  first  as- 
serted in  the  masterly  discussion  in  Marbury  v,  Madison 
by  Chief  Justice  Marshall,  but  there  the  conclusion  was 
reached  by  implication,  and  no  claim  was  made  of  ex- 
press authority  in  the  Constitution/  Professor  Lowell, 
in  his  work  on  "  Democracy  and  the  Constitution,"  says : 
"  The  Supreme  Court  of  the  United  States  could  never 
have  acquired  its  power  of  declaring  a  statute  uncon- 
stitutional in  any  other  country,  at  least  in  any  other  than 
an  Anglo-Saxon  country."  ^ 

The  English  Parliament  may  change  the  powers  and 
prerogatives  of  courts  and  even  abolish  them.^  It  is 
doubtful  whether  the  Federal  tribunal  of  the  German 
Empire,  its  only  great  appellate  court,  has  power  to  in- 
quire into  the  constitutionality  of  a  statute  passed  by  the 
Reichstag  and  the  Bundesrath  and  promulgated  by  the 
Emperor,  or  even  to  inquire  into  the  constitutionality  of 
an  act  passed  by  one  of  the  states.  Professor  Lowell, 
speaking  of  this  court,  says :  "  It  is  certain  that  the 
courts  have  not  in  fact  exercised  any  general  power  of 
refusing  to  apply  statutes  on  constitutional  grounds."  * 
In  Belgium,  jurists  are  said  to  claim  that  a  law  violating 
the  Constitution  ought  to  be  treated  by  the  court  as 
void;  still,  during  the  whole  period  of  Belgium's  inde- 

North  American  Review,  August    i6,  1907;   Mr.   McMutry,  Ju- 
dicial Power  and   Unconstitutional  Legislation,  Coxe,  pp.  30- 
41 ;  Judge  Clark,  Yale  Law  Journal,  December,  1906,  pp.  75-79. 
'  Coxe,  Judicial  Power  and  Unconstitutional  Legislation,  pp. 

54-70- 

^  Lowell,  Democracy  and  the  Constitution,  p.  72. 

»  Dicey,  Law  of  the  Constitution,  p.  153. 

*  Governments  and  Parties  in  Continental  Europe,  p.  283. 


THE   UNITED   STATES   SUPREME   COURT       201 

pendence,  judgment  has  never  been  pronounced  upon  the 
constitutionality  of  an  act  of  its  Parliament.^  Both  the 
German  Constitution  and  the  Belgium  Constitution  im- 
pose limitations  upon  the  powers  of  the  government. 

The  French  Constitution  is  not  found  in  a  single 
document,  but  in  a  series  of  distinct  laws  describing  the 
fundamental  rights  which  the  state  is  enjoined  to 
respect.  An  act  passed  by  the  Chambers  and  promul- 
gated by  the  President  will  be  held  valid  by  every 
tribunal  throughout  the  Republic.^  The  Federal  tribunal 
in  Switzerland  is  bound  by  the  Constitution  to  treat  all 
federal  legislation  as  valid.  The  Kingdom  of  Italy  has 
a  written  Constitution  limiting  the  powers  of  the  gov- 
ernment and  the  monarch.  It  is  the  original  Consti- 
tution of  Sardinia  expanded  into  the  Constitution  of  the 
Kingdom  of  Italy.  It  has  a  Supreme  Court,  but  this 
court  cannot  consider  the  constitutionality  of  a  law  which 
involves  the  construction  of  the  Constitution.^  Although 
the  Austrian  Constitution  puts  limitations  upon  the 
power  of  the  Emperor  and  of  the  government,  still  the 
Federal  Court  has  no  power  to  question  the  validity  of 
a  statute  which  has  been  properly  promulgated.* 

The  origin,  however,  of  the  theory  that  a  court  could 
declare  an  act  unconstitutional  was  found  in  the  history 
of  our  charter  colonies.  Their  rights  and  powers,  like 
the  ordinary  corporation,  were  determined  by  their  char- 
ter, and  when  they  passed  a  law  in  excess  of  the  legal 

'  Dicey,  Law  of  the  Constitution,  p.  131. 

*  Dicey,  Law  of  the  Constitution,  p.  130. 

»  Lowell,  Gov.  and  Parties  in  Cont.  Europe,  p.  151,  Note  i. 

» Lowell,  Gov.  and  Parties  in  Cont.  Europe,  vol.  ii,  p.  84. 


202  FEDERAL    USURPATION 

powers  conferred  by  their  charter,  its  illegality  could  be 
determined  by  their  local  courts,  with  the  right  of  ap- 
peal to  the  privy  council  of  England.  After  the  estab- 
lishment of  the  state  governments  and  before  the  forma- 
tion of  the  Constitution,  legislative  acts  in  two  states, 
Rhode  Island  and  North  Carolina,  were  declared  un- 
constitutional. By  an  act  of  the  general  assembly  of 
Rhode  Island,  passed  in  May,  1786,  provision  was  made 
for  the  emission  of  paper  money.  In  June  the  Legis- 
lature prescribed  that  any  person  who  should  refuse  to 
receive  the  money  in  pa>Tnent  for  goods  on  sale  at  the 
face  value  of  the  goods,  or  who  should  make  two  prices 
for  such  goods,  one  in  paper  and  the  other  in  silver, 
on  conviction  should  be  fined  £200  for  the  first  offense. 
In  August,  1786,  the  Legislature  of  Rhode  Island  passed 
a  law  that  the  offenses  under  this  act  should  be  tried 
by  special  courts  without  a  jury,  by  a  majority  of  the 
judges  present  according  to  the  law  of  the  land,  and 
that  three  members  thereof  should  be  sufficient  to  con- 
stitute a  court- 
John  Trevett  tendered  this  money  to  John  Weeden, 
a  butcher,  for  meat,  and  when  Weeden  refused  to  ac- 
cept the  money,  Trevett  sued  for  the  fine.  It  was  ob- 
jected that  the  trial  by  jurj-  was  a  fundamental  right  in 
the  State  of  Rhode  Island,  that  the  Legislature  had  no 
power  to  enact  a  law  depriving  a  citizen  of  that  right, 
and  that  the  court  could  declare  the  act  invalid.  The 
court  overruled  this  defense,  and  an  appeal  was  taken 
to  the  Supreme  Court  of  the  state.  But  Rhode  Island. 
unlike  all  the  other  states  but  Connecticut,  had  no 
written  constitution  in  the  modem   sense,  having  con- 


THE    UNITED   STATES   SUPREME   COURT       203 

tinued  after  the  Resolution  under  its  colonial  govern- 
ment. So  the  question  before  the  higher  court  involved 
the  invalidity,  of  the  statute  because  of  its  repugnancy 
to  the  provisions  of  the  common  law  securing  to  the 
citizen  the  right  of  trial  by  jury.  While  the  five  judges 
were  considering  this  act,  the  excited  people  in  the 
streets  were  breathing  forth  their  threats  against  them 
if  they  declared  it  invalid.  Notwithstanding,  they  all 
agreed  that  the  act  was  void.  The  legislature  threat- 
ened impeachment  and  refused  to  reelect  them.  No 
opinion  was  written,  but  when  the  judges  appeared  be- 
fore the  legislature  in  October,  1786,  on  charges  of 
treason  and  misconduct,  some  of  them  gave  as  a  reason 
for  their  decision  that  the  defendant  was  entitled  to 
trial  by  jury  according  to  the  law  of  the  land.^  Here 
we  have  a  case  where  an  act  was  declared  invalid  be- 
cause it  deprived  the  defendant,  not  of  a  constitutional 
guarantee,  but  of  a  right  secured  to  him  by  the  com- 
mon law. 

The  law  of  North  Carolina  provided  for  the  sale, 
by  a  commission  appointed  by  the  legislature,  of  lands 
in  that  state  belonging  to  the  loyalists,  and  the  payment 
of  the  money  into  the  state  treasury.  The  purchaser 
received  a  certificate  from  the  commissioner  making  the 
sale  in  behalf  of  the  state,  stating  the  time  of  sale  and 
the  payment;  and  if  sued  in  ejectment  he  was  entitled 
under  the  law  of  the  state,  upon  making  aflfidavit  that 
he  held  the  disputed  property  under  a  sale  from  the 
commissioner  of  forfeited  estates,  to  dismiss  the  suit  on 

>  Coxe,  Judicial  Power  and  Const.  Legislation,  pp.  234,  246, 
249. 


204  FEDERAL   USURPATION 

motion.  Mrs.  Bayard,  the  plaintiff  in  a  suit,  was  the 
heir  of  one  Cornell,  whose  estates  had  been  confiscated. 
The  defendant  had  purchased  her  lands  from  the  com- 
missioner, had  received  the  certificate,  and,  when  sued, 
presented  the  certificate  to  the  court  and  procured  a 
dismissal  of  the  action.  A  large  number  of  other  suits 
involving  the  same  question  were  pending,  and  the  con- 
stitutionality of  the  act  was  duly  brought  to  the  atten- 
tion of  the  court  on  a  motion  to  set  aside  the  dismissal. 
The  court  in  May,  1787,  the  same  month  when  the  Con- 
vention to  frame  the  Constitution  of  the  United  States 
was  gathering  at  Philadelphia,  held  this  act  unconsti- 
tutional, saying:  "  By  the  constitution  every  citizen  had 
undoubtedly  a  right  to  a  decision  of  his  property  rights 
in  a  trial  by  jury.  For  that  if  the  legislature  could 
take  away  this  right,  and  require  him  to  stand  con- 
demned in  his  property  without  a  trial,  it  might  with 
as  much  authority  require  his  life  to  be  taken  away 
without  trial  by  jury,  and  that  he  should  stand  con- 
demned to  die  without  the  formality  of  any  trial  at  all," 
etc.^  And  they  declared  that  the  act  must  "  stand  as 
abrogated  and  without  effect."  William  R.  Davy,  one 
of  the  framers  of  the  Constitution,  was  the  plaintiff's 
counsel  in  the  case  and,  at  the  time  of  its  decision  in 
May,  1787,  was  attending  the  Convention  in  Philadelphia. 
It  was  assumed  by  many  of  the  members  of  the  Con- 
stitutional Convention,  as  appears  by  their  declarations 
at  that  time,  that  the  United  States  Supreme  Court 
would  have  the  power  to  declare  acts  unconstitutional. 

»  Coxe,  Judicial    Power  and    Constitutional    Legislation,  p. 
249;  Bayard  v.  Singleton,  Martin's  Reports,  N.  C,  50,  52. 


THE   UNITED   STATES   SUPREME   COURT       205 

Section  2  of  Article  6  of  the  Constitution  states  that 
"  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all 
treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be  the  supreme  law 
of  the  land."  We  first  observe  that  the  laws  referred 
to  are  declared  to  be  the  supreme  law  of  the  land  only 
when  made  in  pursuance  of  the  Constitution.  The  provi- 
sion continues  by  declaring  that  "  the  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  consti- 
tution or  laws  of  any  State  to  the  contrary  notwithstand- 
ing." The  words  "  the  supreme  law  of  the  land  "  had 
a  meaning  established  by  five  hundred  years  of  English 
history,  and  from  that  meaning  it  well  may  be  inferred 
that  a  law  in  pursuance  of  the  Constitution  bound  the 
states  and  individuals  and  courts,  and  all  laws  not  in 
pursuance  thereof  were  void. 

With  great  reluctance  the  United  States  Supreme 
Court  approached  the  question  of  declaring  a  law  en- 
acted by  Congress  unconstitutional.  Only  two  such 
statutes  were  declared  unconstitutional  prior  to  the  Civil 
War.^  In  two  other  cases  the  Court  refused  to  perform 
duties  imposed  upon  them  by  law  which  were  not  judicial 
in  their  character,  but  it  was  not  until  after  the  Civil 
War  that  the  power  of  declaring  a  law  of  Congress  un- 
constitutional was  freely  exercised.  It  is  too  late  now  to 
urge  that  this  power,  exercised  for  over  a  hundred  years, 
does  not  exist.  It  would  be  rash,  indeed,  to  contend  that 
this  supreme  mandate,  which  renders  the  United  States 

»  Marbury  v.  Madison,  i  Cranch,  137 ;  Dred  Scott  v.  Sanford, 
19  Howard,  393. 


2C36  FEDERAL   USURPATION 

Supreme  Court  the  most  absolute  power  in  existence,  is 
without  foundation.  The  danger  attending  the  exer- 
cise of  this  power,  however,  is  great.  It  matters  not  that 
the  court  calls  it  a  judicial  power,  it  is  quite  as  much 
legislative  in  its  nature.  The  grounds  upon  which  it  has 
been  based,  as  stated  in  the  opinions  declaring  laws  un- 
constitutional, have  been  largely  economic,  political,  or 
sociological.  Public  policy  likewise  has  been  invoked 
again  and  again  by  learned  judges  of  the  Unite'd  States 
Supreme  Court  as  a  reason.  In  ever}-^  opinion  holding 
an  act  unconstitutional,  you  can  find  expression  after  ex- 
pression tending  to  show  that  the  views  of  the  writer  as 
to  government,  political  power,  economic  truth,  or  the 
effect  of  the  act  upon  the  public  interests,  have  greatly 
influenced  the  decision.  In  about  twenty-five  cases  the 
Supreme  Court  has  declared  a  United  States  statute  re- 
pugnant to  the  Constitution,  but  in  only  a  very  few  have 
the  judges  been  unanimous.  In  about  two  hundred 
cases  they  have  declared  the  statutes  of  states  forbid- 
den by  the  provisions  of  the  national  Constitution. 

When  Marshall  became  the  Chief  Justice  of  the  United 
States  Supreme  Court,  there  had  been  only  two  decisions 
involving  the  question  of  the  constitutionality  of  a  state 
or  national  statute.  During  hjs  term  of  office,  from  1801 
to  1835,  the  constitutionality  of  fifty-one  acts  was  passed 
upon,  and  the  great  Chief  Justice  wrote  the  prevailing 
c^inion  in  the  greater  nimiber  of  these  cases.  His  pow- 
erful mind,  his  terse,  logical,  graphic  statement  of  a  legal 
proposition,  his  strong  personality,  his  acute  intellect  and 
masterful  character,  directed  the  current  of  opinion  in 
that  court  toward  a  liberal  construction  of  the  powers 


THE   UNITED   STATES   SUPREME   COURT       207 

of  government.  Never  has  a  judge  spoken  from  any 
court  in  this  country,  or  probably  in  the  world,  with  such 
a  clear  ringing  voice  for  the  vindication  of  what  he 
deemed  the  powers  of  the  court  over  which  he  presided. 
John  Marshall's  construction  of  the  Constitution  made 
the  United  States  in  truth  one  nation.  He,  indeed,  forged 
the  trenchant  blade  with  which  Abraham  Lincoln  slew 
the  dragon  of  secession. 

Our  American  people  are  given  to  believing  that  a 
law  of  Congress  or  of  a  state  legislature  is  a  sovereign 
specific  for  all  evils,  and  in  like  manner  they  always 
have  had  the  utmost  confidence  in  courts.  We  have  been 
in  the  habit  of  ascribing  to  courts  a  sort  of  supernatural 
power  to  regulate  aright  the  affairs  of  the  people,  to  re- 
strain excesses,  and  to  protect  everyone  in  life  and  prop- 
erty. It  is  only  occasionally,  when  some  decision  comes 
down,  which  the  common  man  by  instinct  knows  to  be 
violative  of  his  rights,  that  murmurs  of  discontent  are 
heard. 

The  courts  were  not  always  looked  on  in  this  way. 
When,  in  1794,  the  United  States  Supreme  Court,  in 
Chisholm  v.  Georgia,  held  that  a  state  could  be  sued  by 
a  citizen  of  another  state,  the  states  were  aroused,  and 
proceeded  quickly  to  bring  about  the  passage  of  the 
eleventh  amendment  to  the  Constitution  for  their  pro- 
tection. Judge  Samuel  Chase,  a  very  able  but  partisan 
Judge,  appointed  by  President  Washington  as  Associate 
Justice  of  the  Supreme  Court  in  1796,  was  impeached  in 
1804  at  the  instigation  of  John  Randolph  for  arbitrary 
and  oppressive  conduct.  He  was  tried  in  1805,  but  was 
acquitted.     In   1803,  Judge  Calvin  Pease,  Judge  of  the 


2o8  FEDERAL    USURPATION 

third  Circuit  Court  of  Ohio,  held  that  an  act  of  the  legis- 
lature of  that  state,  conferring  jurisdiction  upon  a  jus- 
tice of  the  peace  to  try  without  a  jury  an  action  where 
judgment  was  asked  for  more  than  $20,  was  unconstitu- 
tional because  of  the  provision  for  a  jury  trial  in  the 
seventh  amendment  to  the  Constitution  of  the  United 
States.  His  decision  was  affirmed.  Not  only  Judge 
Pease,  but  also  Judge  Todd  of  the  appellate  court,  who 
voted  for  an  affirmation  of  Judge  Pease's  decision,  was 
impeached  by  the  assembly  of  the  State  of  Ohio.  Each 
of  them  was  arraigned  before  the  Senate  and  tried  upon 
the  impeachment,  but  both  were  acquitted.^  The  case 
of  Green  v.  Biddle  ^  created  so  much  opposition  in  Ken- 
tucky, that  an  attempt  was  made  to  impeach  the  judges 
of  the  state  courts  who  had  followed  that  decision  in 
other  similar  cases. 

But  the  practice  of  deifying  the  courts  and  regarding 
the  Constitution  as  sacred  commenced  early  in  the  nine- 
teenth century.  As  President  Woodrow  Wilson  says, 
"  The  divine  right  of  kings  never  ran  a  more  prosperous 
course  than  did  this  unquestioned  prerogative  of  the 
Constitution  to  receive  universal  homage."  ^  The  people 
modified  their  state  governments  to  correspond  with  the 
national  government.  But  the  tendencies  of  democracy 
were  so  strong  that  gradually  they  elected  their  govern- 
ors and  judges  by  popular  vote  instead  of  by  the  legis- 
lature as  in  Revolutionary  times.  From  time  to  time 
they  also  amended  their  constitutions,  thus  keeping  in 

'  Cooley,  Constitutional  Lim.,  p.  194,  note. 
*  Green  v.  Biddle,  8  Wheaton,  i. 
•Wilson,  Congressional  Government,  p.  4. 


THE    UNITED   STATES   SUPREME   COURT       209 

touch  with  the  progressive  tendencies  of  society,  although 
the  national  Constitution  continued  from  1804  for  over 
sixty  years  without  a  change.  Well  would  it  be  for  the 
people  if  they  were  more  watchful  of  the  action  of  courts 
to-day,  instead  of  permitting  absorption  in  their  own 
affairs  to  make  them  oblivious  of  how  their  dearest 
rights  are  guarded.  This  era  of  gross  materialism,  when 
men  are  thinking  only  of  becoming  rich,  is  an  era  of 
danger  to  our  institutions.  A  hundred  times  more  dan- 
gerous than  the  wildest  excesses  of  angry  men  is  the 
benumbing,  deadening  influence  of  materialism  on  the 
patriotism  of  the  citizen. 

Of  all  systems  of  government  the  most  difficult  to 
establish  and  render  effective  is  the  federative  system. 
Apparently  simple,  it  is  in  practice  the  most  complex, 
for  it  has  to  apportion  the  degree  of  independence  and 
local  liberty  which  should  remain  in  the  states  with  the 
amount  of  power  delegated  to  the  central  government, 
and  to  nicely  adjust  these  relations.  The  United  States 
Constitution  creates  no  rights  for  the  citizen,  but  simply 
provides  for  the  apportionment  of  those  which  he  ever 
has  had.  The  United  States  Supreme  Court  derives  its 
judicial  power  from  the  Constitution,  and  can  exercise 
no  power  which  is  not  conferred  or  necessary  to  the  pow- 
ers conferred,  while  the  highest  courts  of  the  states  have 
original  common-law  jurisdiction  over  all  domestic  af- 
fairs, unless  prohibited  by  the  United  States  Constitution. 

It  is  to  be  observed  that  the  state  governments,  in 

approving  the  Constitution,   consented  that  the  United 

States   Supreme  Court  should  have  the  final  power  to 

determine  all  questions  when  their  rights  should  come 
15 


210  FEDERAL    USURPATION 

into  conflict  with  the  provisions  of  the  Constitution,  or 
the  laws  made  in  pursuance  of  it.  In  short,  they  have 
delegated  to  a  court,  created  by  the  national  govern- 
ment, the  right  to  determine  between  their  interests  and 
the  interests  of  that  government;  and  it  must  be  said 
to  the  credit  of  this  august  court  that,  until  recently,  it 
has  exercised  that  power  with  great  discretion  and  com- 
mendable impartiality.  Mr.  Justice  Miller,  in  1872,  re- 
ferring to  the  rights  of  the  states  and  their  relations  to 
the  national  government,  very  truthfully  said :  "  But 
whatever  fluctuations  may  be  seen  in  the  history  of  public 
opinion  on  this  subject  during  the  period  of  our  national 
existence,  we  think  it  will  be  found  that  this  court,  so  far 
as  its  functions  require,  has  always  held  with  a  steady 
and  an  even  hand  the  balance  between  State  and  Fed- 
eral power,  and  we  trust  that  such  may  continue  to  be 
the  history  of  its  relation  to  that  subject  so  long  as  it 
shall  have  duties  to  perform  which  demand  of  it  a  con- 
struction of  the  Constitution  or  any  of  its  parts."  ^  This 
statement  was  undoubtedly  true  at  the  time  it  was  made, 
but  since  then  the  decisions  of  the  United  States  Supreme 
Court,  as  to  the  power  conferred  upon  Congress  to  con- 
trol interstate  commerce,  have  been  steadily  destroying 
the  powers  of  the  states.  This  tendency  culminated  in 
the  Lottery  Case  ^  which  practically  held  that  the  na- 
tional government,  through  the  control  of  commerce,  pos- 
sessed the  police  power  of  destroying  a  pernicious  lottery. 
Mr.  Root  tells  us  that  this  tendency  will  be  carried 
still  farther,  and  that  sooner  or  later  constructions  of 

»  Slaughter  House  Cases,  16  Wallace,  82. 
2  188  U.  S.,  321. 


THE    UNITED    STATES   SUPREME   COURT       21 1 

the  Constitution  will  be  found  to  vest  the  unexercised 
powers  of  the  states  in  the  national  government.  As 
the  only  binding  constructions  of  the  Constitution  are 
those  given  by  the  Supreme  Court  of  the  United  States, 
we  assume  that  Mr.  Root  refers  to  that  court  as  the 
power  which  sooner  or  later  will  make  the  constructions 
necessary  to  vest  the  power  sought  in  the  national  gov- 
ernment. It  was  just  such  a  use  of  the  power  of  con- 
struction that  some  of  the  Conventions  which  adopted 
the  Constitution  feared.  The  Convention  of  the  State  of 
New  York,  while  adopting  the  Constitution,  among 
other  declarations,  said:  "That  the  jurisdiction  of  the 
Supreme  Court  of  the  United  States  or  of  any  other 
court  to  be  instituted  by  the  Congress,  is  not  in  any  way 
to  be  increased,  enlarged,  or  extended  by  any  fiction, 
collusion,  or  mere  suggestion,"  ^ 

Resorting  to  fiction  to  bring  about  a  change  of  law 
has  ever  been  a  favorite  method  with  courts.  Interpre- 
tation which  changes  the  law  is  just  as  effective  as  a 
constitutional  amendment,  and  surely  the  sworn  guar- 
dians of  the  law  ought  not  to  attempt  to  bring  about 
such  a  change  by  construction.  Yet  we  know  what 
human  nature  is  and  what  history  has  taught  us. 
Where  the  Constitution  is  interpreted  by  a  court  from 
which  there  is  no  appeal,  and  which  by  its  own  decision 
can  increase  its  own  power,  it  is  apt  to  invoke  implied 
powers  with  considerable  latitude.  A  strict  construction 
of  the  Constitution  is  the  constant  security  of  the  peo- 
ple against  tyrannical  government.  The  rule  which 
allows  the  United  States  Supreme  Court  to  hold  a 
*  Elliot's  Deb.,  vol.  i,  p.  329. 


212  FEDERAL   USURPATION 

statute  unconstitutional  requires  that  before  it  is  so  held 
it  must  be  plain  beyond  a  reasonable  doubt  that  the  law 
considered  is  repugnant  to  the  Constitution.  Yet  its 
decisions  as  to  the  unconstitutionality  of  national  stat- 
utes have  generally  been  made  by  a  divided  court. 
Roman  lawyers,  taking  the  twelve  tables  as  a  basis, 
worked  out  by  the  means  of  implication  and  construc- 
tion, and  analogy  therefrom,  the  extensive  system  of 
law  codified  in  the  reign  of  the  Emperor  Justinian.  The 
impelling  forces  to-day  in  our  country  are  almost  iden- 
tical with  those  of  the  last  fifty  years  of  the  Roman 
republic  and  the  earlier  years  of  the  empire.  It  must 
not  then  be  put  down  to  idle  fear  or  ignorant  suspicion, 
if  intelligent  men  look  with  apprehension  at  the  tend- 
ency in  our  day  of  the  highest  courts  to  first  conclude 
what  they  wish  to  decide,  and  then  find  reasons  for  the 
decision.  The  means  which  they  use  to  accomplish  this 
is  implication  of  powers,  always  so  dangerous  because 
unbounded.  If  admitted  at  all  it  is  capable  of  the  utmost 
extension.  If  the  United  States  Supreme  Court  desires 
sooner  or  later  to  find  constructions  of  the  Constitu- 
tion which  will  vest  the  power,  spoken  of  by  Mr.  Root, 
in  the  national  government  they  can  easily  accomplish 
the  result. 

This  all-powerful  Court  as  yet  has  not  manifested  a 
fixed  intent  to  construe  the  Constitution  so  as  to  rob  the 
states  of  their  reserved  rights,  but  they  have  alarmed 
the  people  in  several  cases  where  they  seem  to  have 
divided  in  their  decision  of  legal  questions  upon  precon- 
ceived opinions  of  public  policy.  Section  8  of  Article  i 
confers  upon  Congress  the  power  "  To  borrow  money 


THE    UNITED   STATES    SUPREME   COURT       213 

on  the  credit  of  the  United  States ;  ...  To  coin  money, 
regulate  the  value  thereof  and  of  foreign  coin,  and  fix  the 
standard  of  weights  and  measures."  By  the  Articles  of 
Confederation,  the  general  government  had  been  al- 
lowed to  issue  bills  of  credit  and  to  make  them  legal 
tender  in  payment  of  debts.  The  states  at  the  same 
time  possessed  concurrent  powers,  and,  between  the 
Federal  government  and  the  several  states,  millions  of 
dollars  of  paper  money  had  been  issued  which  had  be- 
come of  little  or  no  value.  This  condition  precipitated 
the  very  crisis  which  brought  about  the  Constitution 
and  thus  deprived  the  states  of  such  powers.  When 
these  clauses  were  inserted  the  members  of  the  Conven- 
tion were  agreed,  with  two  exceptions,  Mercer  and 
Martin,  of  Maryland,  that  the  opportunity  had  come  to 
destroy  forever  the  power  of  both  the  national  and 
state  governments  to  make  a  bill  of  credit,  issued  by 
either,  a  legal  tender  in  payment  of  a  debt.  The  question 
was  thoroughly  discussed  whether  an  express  prohibi- 
tion to  make  such  paper  a  legal  tender  was  necessary, 
and,  inasmuch  as  the  government  which  they  were  cre- 
ating was  one  of  enumerated  powers,  they  all  agreed 
that  it  was  sufficient  to  withhold  the  power,  since  the 
Federal  government  could  not  exercise  it  unless  ex- 
pressly permitted  by  the  Constitution.  "  Thus,"  says 
Madison  in  his  narrative  of  the  proceedings,  "  the  pre- 
text for  a  paper  currency,  and  particularly  for  making 
the  bills  a  tender  either  for  public  or  private  debts,  was 
cut  off."  ^ 

From   the   day  when  the   Constitution  was   finally 
>  Fiske,  The  Critical  Period  of  American  History,  p.  296. 


214  FEDERAL    USURPATION 

adopted  by  the  states  until  the  Civil  War  all  the  lead- 
ing statesmen  and  jurists,  like  Marshall,  Webster,  Story, 
and  Curtis,  had  again  and  again  declared  the  absence  of 
power  in  the  national  government  to  make  anything 
but  gold  and  silver  coin  a  legal  tender  in  the  payment 
of  debts.  When  in  the  Civil  War  the  banks  suspended 
payments,  Salmon  P.  Chase,  Secretary  of  the  United 
States  Treasury,  recommended  to  Congress  the  issue  of 
United  States  notes,  to  be  made  receivable  for  all  loans 
to  the  United  States  and  all  government  dues  except 
duties  on  imports.  He  said :  "  The  Secretary  recom- 
mends, therefore,  no  mere  paper-money  scheme,  but  on 
the  contrary  a  series  of  measures  looking  to  a  safe  and 
gradual  return  to  gold  and  silver  as  the  only  perma- 
nent basis,  standard,  and  measure  of  value  recognized 
by  the  Constitution."  Congress  had  the  power  to  pre- 
scribe that  these  notes  should  be  accepted  in  payment 
by  the  government,  and  in  many  ways  could  have  aided 
in  giving  them  value  as  a  circulating  medium  without 
making  them  legal  tender. 

On  February  7,  1870,  the  United  States  Supreme 
Court,  in  the  case  of  Hepburn  v.  Griswold,  announced 
from  the  Bench  its  decision  that  the  legal-tender  acts 
of  1862  and  1863,  as  regards  the  payment  of  debts 
existing  before  their  passage,  were  unconstitutional. 
Chief  Justice  Salmon  P.  Chase,  Justices  Nelson,  CHf- 
ford,  Greer,  and  Field  concurred  therein  and  Justices 
Swayne,  Davis,  and  Miller  dissented.  By  an  act  passed 
during  President  Johnson's  administration,  the  number 
of  judges  of  the  Supreme  Court  was  reduced  from  nine 
to  seven,  for  the  purpose  of  depriving  him  of  the  right 


THE    UNITED    STATES   SUPREME   COURT      215 

to  fill  the  vacancies  which  were  about  to  occur.  Soon 
after  President  Grant's  inauguration  a  new  act  restored 
the  number  to  nine  to  take  effect  on  the  first  Monday 
of  Decembef-,  1869.  On  February  7,  1870,  the  day  on 
which  the  decision  affecting  the  legal-tender  act  was 
handed  down,  two  vacancies  existed.  On  February  18, 
1870,  the  President  appointed  William  Strong,  of  Penn- 
sylvania, to  fill  one  of  said  vacancies,  and  on  March  21, 
1870,  Joseph  P.  Bradley,  of  New  Jersey,  to  fill  the 
other. 

Of  these  appointments  President  Woodrow  Wilson 
says :  ^  "In  December,  1869,  the  Supreme  Court  de- 
cided against  the  constitutionality  of  Congress's  pet 
Legal  Tender  Acts;  and  in  the  following  March  a  va- 
cancy on  the  bench  opportunely  occurring,  and  a  new 
justiceship  having  been  created  to  meet  the  emergency, 
the  Senate  gave  the  President  to  understand  that  no 
nominee  unfavorable  to  the  debated  acts  would  be  con- 
firmed, two  justices  of  the  predominant  party's  way  of 
thinking  were  appointed,  the  hostile  majority  of  the 
court  was  outvoted,  and  the  obnoxious  decision  re- 
versed." Mr.  Rhoades  reaches  the  conclusion  that 
there  is  no  circumstantial  evidence  to  show  that  the 
appointments  of  Judges  Strong  and  Bradley  were  made 
with  the  intention  of  reversing  this  decision,^  and  he 
tells  us  that  the  appointments  were  sent  to  the  Senate 
by  the  President  on  the  very  morning  of  February  7, 
1870,  before  the  decision,  which  had  been  made  in  De- 
cember, 1869,  was  handed  down.    The  decision  of  Hep- 

'  Congressional  Government,  p.  38. 

*  Rhoades,  History  of  the  United  States,  vol.  vi,  pp.  268-273. 


2l6  FEDERAL    USURPATION 

bum  t'.  Griswold,  however,  was  made  in  conference  No- 
vember 2^,  1869 ;  and  this  might  well  have  been  known 
by  Attorney-General  Hoar,  who  cherished  a  bitter  feel- 
ing toward  Chief  Justice  Chase,  and  who  was,  we  are 
told,  instrumental  in  bringing  about  the  new  appoint- 
ments. Upon  the  appointment  of  the  new  judges,  the 
Attorney-General  immediately  moved  that  two  cases  in- 
volving the  constitutionality  of  the  legal-tender  issue  be 
taken  up  and  argued,  notwithstanding  the  prior  decision 
of  the  court.  The  court,  by  the  five  judges  who  there- 
after voted  for  reversal,  instead  of  rebuking  the  Attor- 
ney-General ordered  that  these  cases  be  heard. 

On  May  i,  1871,  the  two  cases  having  been  brought 
on  for  hearing  before  the  court  as  reorganized,  a  de- 
cision was  annoimced  reversing  the  prior  decision,  and 
on  January  15,  1872,  the  opinions  were  read  in  open 
court.^  The  five  judges  who  voted  to  hear  the  re- 
argument  all  concurred  in  this  decision  of  reversal.  Mr. 
Justice  Strong,  one  of  the  new  appointees,  wrote  the 
prevailing  opinion,  Mr.  Justice  Bradley,  the  other,  writ- 
ing a  concurring  opinion.  ^Ir.  Justice  Greer,  who  had 
sat  in  the  prior  case  of  Hepburn  v.  Griswold,  had  retired 
from  the  court;  but  Chief  Justice  Chase  and  Justices 
Nelson,  Clifford,  and  Field  dissented  from  the  decision. 
The  preN'ailing  opinion  held  that  the  power  to  issue 
these  notes  could  be  inferred  from  the  powers  which 
grow  out  of  the  aggregate  of  powers  conferred  upon  the 
government  by  the  Constitution,  or  out  of  the  sov- 
ereignty instituted  by  it. 

Legal  precedents  in  law  become  rules  of  property 
•  Legal  Tender  Cases,  79  U.  S.,  457. 


THE    UNITED    STATES   SUPREME   COURT      217 

and  muniments  of  personal  rights.  It  is  a  well-estab- 
lished rule  that  a  court  never  should  overrule  its  de- 
cision in  a  case  affecting  private  rights  of  property 
which  has  been  followed  for  some  period  of  time,  be- 
cause it  has  been  relied  on  by  people  in  exchanging 
values.  "  No  man,"  said  Sir  William  Jones,  "  who  is 
not  a  lawyer  would  in  many  instances  know  how  to  act, 
and  no  man  who  is  a  lawyer  would  in  many  instances 
know  how  to  advise,  unless  the  courts  were  bound  by 
authority  as  firmly  as  pagan  deities  were  supposed  to 
be  bound  by  the  decrees  of  fate."  The  people  had  relied 
upon  the  lack  of  power  in  the  government  to  issue  irre- 
deemable paper  money  as  a  legal  tender,  from  the  for- 
mation of  the  Constitution  until  the  passage  of  the 
Legal  Tender  Acts.  The  case  of  Hepburn  v.  Griswold 
was  decided  in  February,  1870,  and  until  May  i,  1871, 
business  had  been  conducted  upon  the  basis  of  that  de- 
cision. The  price  of  gold  had  steadily  declined,  not- 
withstanding the  decision  in  the  case  of  Hepburn  v. 
Griswold,  until  May,  1871 ;  and  Mr.  Rhoades  tells  us : 
"  Had  the  country  acquiesced  in  the  decision  of  the 
court,  and  had  Congress  supplemented  it  by  legislation 
permitting  the  Secretary  of  the  Treasury  gradually  to 
contract  the  greenbacks,  specie  payments  would  have 
been  reached  by  1873  and  the  financial  panic  of  that 
year  postponed."  ^ 

But  the  United  States  Supreme  Court  did  not  stop 
with  this  decision.  Once  started  in  this  course  it  was 
easy  to  go  to  the  end,  and  so  in  a  case,^  decided  in 

'  Rhoades,  History  of  the  United  States,  vol.  vi,  p.  266. 
2  JuilHard  v.  Greenman,  no  U.  S.,  447-449. 


2l8  FEDERAL    USURPATION 

March,  1884,  the  court  finally  determined  that  the  re- 
issue of  the  greenbacks,  under  an  act  passed  in  1878, 
in  a  time  of  peace,  there  being  no  necessity  for  their 
reissue,  should  be  upheld  as  an  attribute  to  that  sov- 
ereignty which  appertains  to  all  governments  at  all 
times.  So  by  construction  they  finally  arrived  at  the 
conclusion  that  the  power  to  coin  money  included  the 
power  to  stamp  paper  and  declare  it  a  legal  tender  in 
a  time  of  peace.  The  reasoning  on  which  this  opinion 
rests  is  of  interest,  for  if  it  be  good  the  Constitution 
has  no  limitations,  and  it  will  avail  nothing  to  examine 
carefully  as  to  the  powers  delegated  by  the  states  and 
the  people  to  the  national  government.  The  court 
said :  "  The  governments  of  Europe,  acting  through  the 
monarch  or  the  legislature,  according  to  the  distribu- 
tion of  powers  under  their  respective  constitutions, 
had  and  have  as  sovereign  a  power  of  issuing  paper 
money  as  of  stamping  coin.  This  power  has  been  dis- 
tinctly recognized  in  an  important  modern  case,  ably 
argued  and  fully  considered,  in  which  the  Emperor  of 
Austria,  as  King  of  Hungary,  obtained  from  the  Eng- 
lish Court  of  Chancery  an  injunction  against  the  issue 
in  England,  without  his  license,  of  notes  purporting  to 
be  public  paper  money  of  Hungary."  And  from  this 
the  power  was  implied  to  make  government  notes  a 
legal  tender  in  payment  of  private  debts,  as  one  of  the 
powers  belonging  to  the  sovereignty  of  other  nations 
and  "  not  expressly  withheld  from  Congress  by  the 
Constitution." 

Until  the  time  of  this  decision  it  had  been  supposed 
that  the  only  sovereignty  which  the  national  govern- 


THE    UNITED    STATES   SUPREME   COURT       219 

ment  had  was  conferred  upon  it  by  the  express  grants 
of  the  Constitution,  together  with  such  powers  as  were 
necessary  and  proper  to  carry  those  express  grants  into 
execution.  Until  this  decision  it  had  never  been  sug- 
gested that  the  power  of  Congress  arose  from  what  was 
"  expressly  withheld  from  Congress  by  the  Constitu- 
tion," but  rather  arose  from  what  was  expressly  granted 
to  Congress  by  the  Constitution.  Still  this  learned 
court,  eight  judges  concurring,  deliberately  invoked  the 
sovereign  powers  of  the  Austrian  Empire  as  the  basis 
for  inferring  a  like  sovereignty  in  the  United  States; 
and  then  emphasized  the  fact  as  an  important  one  that 
the  power  to  issue  such  notes  was ."  not  expressly  with- 
held from  Congress  by  the  Constitution,"  when  in  the 
Constitutional  Convention  the  very  question  was  dis- 
cussed, with  the  result  that  those  great  lawyers  and  con- 
structive statesmen  determined  it  to  be  unnecessary  to 
prohibit  the  United  States  from  issuing  paper  money 
and  making  it  a  legal  tender  in  payment  of  debts,  since 
the  Federal  government  could  not  exercise  a  power 
unless  it  was  expressly  granted  in  the  Constitution.^  If 
this  kind  of  judicial  reasoning  is  to  prevail  in  the  courts 
there  is  nothing  to  hinder  the  United  States  Supreme 
Court  from  holding  that  the  government  has  inherent 
powers.  That  doctrine  once  established  the  Constitu- 
tion at  one  blow  is  reduced  to  blank  paper,  and  then  our 
judges  may  commence  to  examine  the  exercise  of  power 
by  absolute  governments  in  the  history  of  the  world,  as  a 
basis  for  ascertaining  what  power  is  vested  in  Congress. 

'  Fiske,  The   Critical  Period   of  American   History,  p.    296; 
Legal  Tender  Cases,  79  U.  S.,  652-656  of  opinion  by  Field. 


220  FEDERAL    USURPATION 

Subdivision  i  of  Section  8,  Article  i,  of  the  Consti- 
tution, empowers  Congress  "  To  lay  and  collect  taxes, 
duties,  imposts,  and  excises,  to  pay  the  debts  and  pro- 
vide for  the  common  defense  and  general  welfare  of  the 
United  States ;  but  all  duties,  imposts,  and  excises  shall 
be  uniform  throughout  the  United  States."  Subdivision 
4,  Section  9,  Article  i,  provides  that  "  No  capitation  or 
other  direct  tax  shall  be  laid,  unless  in  proportion  to  the 
census  or  enumeration "  directed  by  the  Constitution. 
Another  provision  of  the  Constitution  prescribes  that 
representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  states  according  to  their  respective 
numbers.  The  Wilson  Bill  imposed  a  tax  of  two  per 
cent  upon  all  incomes  of  more  than  $4,000,  the  tax  to 
remain  in  force  until  January  i,  1900.  This  clause  was 
passed  in  the  House  of  Representatives  by  a  vote  of  204 
to  140,  and  the  whole  bill  was  passed  by  a  vote  of  182 
to  106,  sixty-one  members  not  voting.  Income  taxes 
had  been  passed  from  time  to  time  in  the  history  of  the 
country,  especially  during  the  Civil  War,  when  eight  of 
such  laws  were  enacted. 

The  constitutionality  of  this  act,  so  far  as  it  imposed 
a  duty  upon  incomes,  was  contested  in  the  United 
States  Supreme  Court  in  a  suit  in  equity  by  one  Pollock 
against  the  Farmers'  Loan  and  Trust  Company,^  to 
prevent  a  threatened  breach  of  trust  by  the  defendant  in 
the  misapplication  or  diversion  of  its  funds  by  the  illegal 
payment  from  its  capital  of  the  income  tax  on  its  profits. 
Pollock  was  a  stockholder  of  the  defendant,  and  he  al- 
leged that  they   threatened  to  pay  the  tax   and   thus 

'  Pollock  V.  Fanners'  Loan  and  Trust  Co.,  157  U.  S.,  429. 


THE    UNITED    STATES   SUPREME   COURT       221 

impair  his  interest,  and,  as  the  payment  would  result  in 
a  multiplicity  of  suits,  that  he  asked  an  injunction  from 
the  Equity  Court  enjoining  the  defendant  from  paying 
the  tax.  It  was  the  claim  of  the  plaintiff  that  the  income 
tax  was  a  direct  tax,  and  therefore  must  be  apportioned 
among  the  several  states  according  to  their  respective 
numbers,  and  could  not  be  imposed  as  a  duty,  impost, 
or  excise  uniformly  throughout  the  United  States  upon 
annual  incomes. 

By  the  Act  of  June  5,  1794,  Congress  laid  a  tax  upon 
carriages  for  the  conveyance  of  persons,  and  the  ques- 
tion whether  this  was  a  direct  tax  within  the  meaning 
of  the  Constitution  was  decided  at  that  time  by  the 
United  States  Supreme  Court.^  Mr.  Justice  Wilson, 
who  was  one  of  the  most  prominent  members  of  the 
Convention  framing  the  Constitution,  Mr.  Justice  Chase, 
one  of  the  ablest  jurists  of  his  time,  Mr.  Justice  Patter- 
son and  Mr.  Justice  Iredell,  sitting  in  that  court  at  that 
time,  each  expressed  the  reasons  for  their  conclusions 
holding  that  the  tax  was  an  indirect  tax  or  duty.  Mr. 
Justice  Patterson,  who  read  the  principal  opinion,  said: 
"  I  never  entertained  a  doubt  that  the  principal,  I  will 
not  say  the  only,  objects  that  the  framers  of  the  Consti- 
tution contemplated  as  falling  within  the  rule  of  appor- 
tionment, were  a  capitation  tax  and  a  tax  on  land." 
This  case  had  been  cited  by  every  text-book  writer  on 
the  Constitution  from  that  time  until  the  Pollock  case, 
as  holding  conclusively  that  a  direct  tax  within  the 
meaning  of  the  Constitution  was  only  a  poll  or  capita- 
tion tax  or  a  tax  directly  upon  real  estate ;  and  that  all 
1  Hilton  V.  United  States,  3  Dallas,  171. 


222  FEDERAL    USURPATION 

Other  taxes  were  indirect  taxes,  duties,  imposts,  or  ex- 
cises. For  over  a  hundred  years  the  United  States  Gov- 
ernment had  thus  construed  the  law. 

Commencing  with  1798,  and  extending  down  to 
1816,  five  income  taxes  had  been  imposed,  and  in  ever)' 
one  of  those  cases  the  government  had  followed  the  de- 
cision in  the  Hilton  case,  the  assumption  being  that  that 
decision  had  settled  the  law  for  this  country.  From 
1861  to  1870,  eight  different  statutes  imposing  taxes  on 
income  arising  from  both  real  estate  and  personal  prop- 
erty had  been  enacted.  Literally,  hundreds  of  millions 
of  dollars  had  been  taken  from  the  taxpayers  through 
income  taxes  of  the  same  nature  as  the  provision  in  the 
Wilson  Bill.  In  Springer  against  the  United  States,  a 
case  decided  in  1884,  the  question  of  the  validity  of  one 
of  the  Civil  War  income  taxes  was  involved.^  Springer 
was  assessed  on  his  professional  earnings  and  on  the 
interest  of  United  States  bonds.  He  refused  to  pay,  and, 
his  real  estate  consequently  being  sold,  the  suit  involved 
the  validity  of  the  tax  as  a  basis  for  the  sale.  The 
United  States  Supreme  Court  held  the  tax  valid. 

Notwithstanding  this  hundred  years  of  unbroken 
history  in  its  courts  and  in  all  of  the  departments  of 
government,  recognizing  that  a  direct  tax  meant  only  a 
poll  tax  or  tax  on  real  estate,  the  United  States  Supreme 
Court  by  a  majority  of  five  to  four  declared  the  provision 
in  the  Wilson  Bill  unconstitutional.  On  April  8,  1895,  a 
partial  decision  of  the  case  was  made,  in  which  the  court, 
consisting  of  eight  members  only,  was  evenly  divided  as 
to  the  constitutionality  of  the  tax  imposed  upon  an  in- 
»  Springer  v.  United  States,  102  U.  S.,  586. 


THE    UNITED    STATES   SUPREME    COURT      223 

come  from  personal  property,  but  a  majority  of  the 
court  determined  that  the  tax  was  unconstitutional  as 
to  the  provision  on  incomes  from  real  estate  and  munici- 
pal bonds.  A  final  decision  on  the  constitutionality  of 
the  law  as  regards  personalty  was  deferred  owing  to 
the  absence  from  illness  of  Mr.  Justice  Jackson.  A  few 
weeks  later  the  court  rendered  its  decision,  but  in  the 
meantime  Mr.  Justice  Shiras,  who  on  April  8th  had 
been  favorable  to  the  constitutionality  of  the  law  as  to 
personal  property,  had  changed  his  opinion;  so  on  May 
20th  the  whole  act  was  declared  unconstitutional,  Jus- 
tices Harlan,  Brown,  Jackson,  and  White  dissenting.  In 
the  early  part  of  the  last  century  the  Irish  courts  relied 
for  precedents  upon  the  decisions  of  the  House  of  Lords 
and  the  other  appellate  courts  of  England.  Mr. 
Plunket,  the  greatest  of  the  Irish  barristers  of  those 
days,  was  addressing  Lord  Manners  on  a  question  of 
law,  when  the  following  colloquy  took  place :  "  Are  you 
sure,  Mr.  Plunket,"  said  Lord  Manners,  "  that  what  you 
have  stated  is  the  law?"  "It  unquestionably  was  the 
law  a  half  hour  ago,"  replied  Mr,  Plunket,  pulling  out 
his  watch,  "  but  by  this  time  the  packet  has  arrived  with 
a  new  batch  of  decisions  and  I  shall  not  be  positive."  ^ 
"  The  Constitution,"  says  Mr.  Cooley,  "  is  not  to  be 
made  to  mean  one  thing  at  one  time  and  another  at 
some  subsequent  time,  when  the  circumstances  have  so 
changed  as  perhaps  to  make  a  different  rule  in  a  case 
seem  desirable."  Yet  this  was  just  what  occurred  in 
the  Income  Tax  case.  The  meaning  of  a  direct  tax  hav- 
ing been  established  by  the  men  who  framed  the  Consti- 
*  Shiel,  Sketches  of  the  Irish  Bar,  p.  58,  note. 


224  FEDERAL    USURPATION 

tution  and  their  contemporaries,  and  that  construction 
having  prevailed  for  over  a  hundred  years,  during  which 
time  the  government  took  from  private  persons  hun- 
dreds of  milHons  of  dollars  upon  that  construction,  a 
majority  of  the  United  States  Supreme  Court  deliber- 
ately overruled  all  their  predecessors,  basing  their  de- 
cision very  largely  upon  the  definition  of  direct  and  in- 
direct taxes,  as  laid  down  by  Adam  Smith  and  other 
political  economists.  The  United  States  Supreme  Court 
has  practically  reversed  itself  in  many  other  cases  in 
recent  days.^  Again  and  again  we  find  the  Justice  of 
that  court  who  writes  the  prevailing  opinion  reasoning 
upon  the  result  of  a  contrary  decision,  and  invoking  the 
rule  of  inconvenience  and  the  effect  of  such  decision 
upon  the  public  interests.^  These  considerations  which 
are  purely  questions  of  public  policy,  and  not  of  law, 
are  to  be  considered  by  legislative  bodies  and  not  by 
courts,  still  they  have  been  influential  in  shaping  judicial 
action. 

The  result  of  the  income  tax  decision  was  to  withhold 
the  burdens  of  taxation  from  a  few  hundred  thousand 
wealthy  men,  and  to  place  a  considerable  proportion  of 

>  S.  Carolina  v.  U.S.,  199  U.S.,  439,  practically  reversing 
Collector  v.  Day,  11  Wallace,  113;  and  Income  Tax  Case  so  far 
as  it  held  that  the  provision  affecting  municipal  corporations 
was  unconstitutional;  Haddock  v.  Haddock,  201  U.  S.,  562, 
practically  overruling  Atherton  v.  Atherton,  181  U.  S.,  155; 
Leisy  v.  Hardin,  135  U.  S.,  100,  practically  reversing  the  License 
Cases,  5  Howard,  504. 

*  Opinion  of  Mr.  Justice  Miller  in  Slaughter  House  Cases,  16 
Wallace,  589,  599;  Pine  v.  City  of  New  York,  185  U.  S.,  93; 
S.  Car.  V.  U.  S.,  199  U.  S.,  455;  Maxwell  v.  Dow,  176  U.  S.,  590; 
Lottery  Case,  188  U.  S.,  321. 


THE    UNITED    STATES   SUPREME   COURT      225 

those  burdens,  through  the  indirect  taxation  of  the  tariflF, 
upon  the  heads  of  families  working  in  factories,  and  upon 
farms  all  over  the  country.  Ofttimes  judges  and  great 
lawyers  speak  of  the  lack  of  intelligence  and  of  the  preju- 
dice and  passion  of  juries,  but  these  are  not  half  so  power- 
ful as  the  preconceived  opinions  and  the  influence  of 
social  relations  upon  the  action  of  judges.  The  instinct 
of  a  great  body  of  men  of  even  a  low  grade  of  intelligence 
frequently  carries  them  not  only  to  the  popular  but  to  the 
right  side  of  a  public  question.  Leading  Englishmen, 
before  the  War,  justly  derided  us  for  continuing  the  ter- 
rible evil  of  slavery  so  long  in  a  democratic  republic. 
But  when  the  South  marshalled  her  forces  in  rebellion 
without  a  ship  on  the  ocean,  and  with  Jefferson  Davis 
but  just  elected  as  President  of  the  Southern  Confeder- 
acy, England  recognized  them  as  belligerents,  and  the 
sympathies  of  her  men  of  wealth  and  social  standing  were 
with  the  South  from  the  beginning  to  the  end  of  the  war. 
At  the  same  time  millions  of  poor  English  workingmen, 
out  of  work  and  starving  because  of  the  cotton  famine 
which  resulted  from  the  war,  gave  their  sympathies  to 
liberty  and  to  the  Northern  cause. 

France  has  recently  adopted  an  income  tax;  and  to- 
day all  the  leading  countries  of  the  civilized  world,  with 
the  exception  of  the  United  States,  Russia,  Belgium, 
Hungary,  and  Portugal,  are  depending  upon  this  means 
of  raising  money  for  the  support  of  government.  The 
President,  in  his  Jamestown  speech,  has  recently  given 
utterance  to  words  which  indicate  that  he  hopes  that 
the  income  tax  decision  of  the  United  States  Supreme 

Court  will  be  reversed.     Mr.  Hannis  Taylor,  author  of 
16 


226  FEDERAL    USURPATION 

"  Jurisdiction  and  Procedure  of  the  United  States  Su- 
preme Court,"  recently  wrote  of  this  decision :  "  Because 
by  a  single  vote  the  Supreme  Court  decided  some  time 
ago  against  the  validity  of  a  proportional  income  tax 
levied  in  a  certain  form,  there  is  no  reason  to  believe 
that  the  Court,  as  it  is  now,  or  as  it  will  be  constituted 
in  the  near  future,  will  attempt  to  annul  acts  drafted 
in  the  proper  form,  imposing  graduated  taxes  upon  both 
incomes  and  inheritances."  Is  it  possible  that  anyone 
contemplates  that  the  United  States  Supreme  Court  will 
again  reverse  itself?  Better  a  hundred  times  amend  the 
Constitution,  and  make  it  clear  beyond  doubt  that  the 
government  has  the  right  to  impose  an  income  tax.  The 
Dred  Scott  decision  shattered  the  faith  of  thousands  of 
honest  and  intelligent  men  in  the  United  States  Supreme 
Court.  Every  consideration  of  public  policy  requires  that 
that  Court  shall  not  again  reverse  itself. 

But  other  changes  are  going  on  in  this  august  court, 
much  more  worthy  of  the  careful  examination  of  the 
citizen  than  either  the  legal  tender  or  the  income  tax 
cases.  In  Downes  v.  Bidwell,^  Mr.  Justice  Brown  ut- 
tered these  significant  words :  "  We  suggest,  without  in- 
tending to  decide,  that  there  may  be  a  distinction  between 
certain  natural  rights,  enforced  in  the  Constitution  by 
prohibitions  against  interference  with  them,  and  what 
may  be  termed  artificial  or  remedial  rights  which  are 
peculiar  to  our  own  system  of  jurisprudence."  A  later 
case  exemplifies  what  the  learned  judge  meant  by  such 
a  distinction.^     That  case  was  a  petition  by  one  Man- 

>  Downes  v.  Bidwell,  182  U.  S.,  282. 
» Hawaii  v.  Mankichi,  190  U.  S.,  197. 


THE   UNITED   STATES   SUPREME   COURT      227 

kichi  for  a  writ  of  habeas  corpus  to  obtain  his  release 
from  imprisonment  in  Hawaii  upon  conviction  for  man- 
slaughter. He  alleged  that  Hawaii  had  been  incorpo- 
rated into  the  United  States ;  that,  by  the  joint  resolution 
of  its  incorporation,  the  administration  of  the  criminal 
law,  as  it  existed  at  the  time  of  the  joint  resolution,  was 
to  be  continued  only  so  far  as  it  was  "  not  contrary  to 
the  Constitution  of  the  United  States  " ;  that  he  was  ar- 
raigned only  upon  an  information  of  the  Attorney-General 
of  the  territory,  and  not  on  an  indictment  for  man- 
slaughter; and  that  he  was  tried  by  a  common-law  jury, 
but  that  only  nine  of  the  jurors  were  in  favor  of  his 
conviction,  the  other  three  dissenting. 

It  appears  that,  under  the  procedure  existing  in  Ha- 
waii at  the  time  of  the  joint  resolution  incorporating  it 
into  the  United  States,  a  person  could  be  held  for  a  capi- 
tal or  otherwise  infamous  crime  on  the  information  of 
the  Attorney-General,  without  any  presentment  or  indict- 
ment of  a  grand  jury,  and  that  he  could  be  convicted 
upon  the  verdict  of  nine  of  the  twelve  jurors  voting 
guilty.  The  jury  trial  mentioned  in  the  Sixth  Amend- 
ment to  the  Constitution  requires  the  unanimous  verdict 
of  the  twelve  jurors,^  while  the  Fifth  Amendment  pro- 
vides that,  "  No  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime,  unless  on  the  pre- 
sentment or  indictment  of  a  grand  jury."  These  provi- 
sions apply  in  full  force  to  the  courts  of  Hawaii. 

Mr.  Justice  Brown,  of  the  United  States  Supreme 
Court,  wrote  the  opinion  of  the  Court  on  this  appeal,  and 
an  extract  from  his  opinion  will  disclose  the  most  danger- 
1  Springville  v.  Thomas,  166  U.  S.,  707,  708. 


228  FEDERAL   USURPATION 

ous  law  ever  laid  down  by  a  court  of  justice :  "  It  is  not 
intended  here  to  decide  that  the  words  '  nor  contrary  to 
the  Constitution  of  the  United  States '  are  meaningless. 
Clearly  they  would  be  operative  upon  any  municipal 
legislation  thereafter  adopted,  and  upon  any  proceed- 
ings thereafter  had,  when  the  application  of  the  Con- 
stitution would  not  result  in  the  destruction  of  existing 
provisions  conducive  to  the  peace  and  order  of  the  com- 
munity. Therefore  we  should  answer  without  hesitation 
in  the  negative  the  question  put  by  counsel  for  the  peti- 
tioner in  their  brief :  '  Would  municipal  statutes  of  Ha- 
waii, allowing  a  conviction  of  treason  on  circumstantial 
evidence,  or  on  the  testimony  of  one  witness,  depriving 
a  person  of  liberty  by  the  will  of  the  legislature  and 
without  process,  or  confiscating  private  property  for  pub- 
lic use  without  compensation,  remain  in  force  after  an 
annexation  of  the  territory  to  the  United  States,  which 
was  conditioned  upon  the  extinction  of  all  legislation 
contrary  to  the  Constitution  ? '  We  would  even  go  far- 
ther, and  say  that  most,  if  not  all,  the  privileges  and 
immunities  contained  in  the  bill  of  rights  of  the  Constitu- 
tion were  intended  to  apply  from  the  moment  of  annexa- 
tion; but  we  place  our  decision  of  this  case  upon  the 
ground  that  the  two  rights  alleged  to  be  violated  in  this 
case  are  not  fundamental  in  their  nature,  but  concern 
merely  a  method  of  procedure  which  sixty  years  of  prac- 
tice had  shown  to  be  suited  to  the  conditions  of  the 
islands,  and  well  calculated  to  conserve  the  rights  of 
their  citizens  to  their  lives,  their  property,  and  their  well 
being." 

If  the  right  when  upon  trial  under  the  United  States 


THE    UNITED   STATES   SUPREME   COURT       229 

Statutes,  whether  in  the  District  of  Columbia,  or  in  Ha- 
waii, to  be  held  only  on  a  presentment  or  indictment  of 
a  grand  jury,  and  to  be  convicted  only  by  a  unanimous 
verdict  of  a  jury  of  twelve  men,  is  not  a  right  fundamental 
in  its  nature,  then  it  would  be  difficult  to  select  any  right 
prescribed  in  the  first  eight  amendments  to  the  Constitu- 
tion which  is  fundamental.  The  first  eight  amendments 
to  the  Constitution  embody  the  Bill  of  Rights  and,  in  the 
main,  are  principles  of  English  liberty  which  existed 
three  to  five  hundred  years  before  the  making  of  the  Con- 
stitution. The  people  made  those  amendments  to  the 
Constitution  because  of  their  fear  that  the  national  gov- 
ernment in  its  courts  would  not  recognize  these  bulwarks 
of  liberty.  And  now  the  Supreme  Court  has  taken  upon 
itself  to  determine  that  a  person  being  tried  for  a  crime 
in  a  territory  of  the  United  States,  annexed  with  such  a 
provision  as  we  have  recited,  shall  not  have  the  pro- 
tection which  the  fifth  and  sixth  amendments  of  the  Con- 
stitution secure  to  him ;  namely,  that  he  shall  be  held 
on  the  presentment  or  indictment  of  a  grand  jury  and 
shall  be  tried  by  a  common-law,  jury,  which  means  a  jury 
of  twelve  men,  and  convicted  only  upon  their  unanimous 
verdict. 

Where  does  the  United  States  Supreme  Court  get  the 
power  to  decide  what  portions  of  the  first  eight  amend- 
ments shall  be  extended  to  criminals  being  tried  in  our 
territories,  and  what  portions  shall  be  withheld?  By 
what  power  does  it  distinguish  between  those  guaranteed 
rights,  according  as  it  may  deem  them  fundamental  or 
not  fundamental  in  their  nature?  Is  such  a  discretion 
as  that  reposed  in  the  United  States  Supreme  Court? 


230  FEDERAL    USURPATION 

If  the  court,  as  now  constituted,  can  allow  a  man  charged 
with  crime  to  receive  the  benefit  of  some  of  the  amend- 
ments and  withhold  from  him  others,  how  long  will  it 
be  before  some  court  will  regard  all  of  these  amend- 
ments as  not  fundamental  in  their  nature?  The  pre- 
siding Justice  of  the  Court  and  three  of  the  Associates, 
Justices  Harlan,  Brewer,  and  Peckham,  dissented  from 
this  startling  doctrine. 

The  court,  in  a  more  recent  case,^  declared  that  the 
Philippine  Islands  have  not  been  incorporated  into  the 
United  States;  and  that,  therefore,  the  provisions  of  the 
amendments  to  the  Constitution  are  not  extended  to 
those  Islands ;  and  it  results  that  an  inhabitant  of  those 
Islands  could  be  convicted  of  treason  on  circumstantial 
evidence,  or  on  the  testimony  of  one  witness,  notwith- 
standing the  Constitution  provides  to  the  contrary.  The 
property  of  an  inhabitant  likewise  could  be  taken  from 
him  without  due  process  of  law  and  confiscated  for  pub- 
lic use  without  compensation.  There  is  not  a  right  se- 
cured to  the  citizen  of  the  United  States  to-day  of  which 
the  people  of  the  Philippines  could  not  be  deprived  with- 
out protection  from  the  fourteen  amendments  to  the  Con- 
stitution, because,  forsooth,  we  have  not  incorporated 
the  Philippine  Islands  into  the  territory  of  the  United 
States.  We  acquired  the  Philippines  through  treaty, 
and  the  right  to  make  the  treaty  and  to  acquire  them 
came  from  the  Constitution.  But  although  we  acquired 
these  Islands  through  the  Constitution,  still  the  rule  of 
the  Constitution  does  not  extend  to  them.  We  are  in 
possession  of  the  Philippines ;  we  make  the  laws  that 
»  Dorr  V.  United  States,  195  U.  S.,  138. 


THE    UNITED   STATES   SUPREME   COURT       231 

control  them,  impose  taxes  upon  them,  fix  the  duties 
to  be  paid  on  the  admission  of  imports  to  them,  pass  laws 
controlling  their  lives  as  completely  as  the  life  of  the 
citizen  in  this  country,  and  still  we  have  not  incorporated 
them  so  that  the  Constitution,  through  which  we  acquired 
them,  protects  them. 

In  every  country  the  value  set  upon  human  life  and 
liberty  is  the  measure  of  the  degree  of  its  civilization. 
It  is  perfectly  evident  that  the  value  of  the  lives  and 
the  liberties  of  that  great  proportion  of  our  people  who 
are  either  poor  or  in  moderate  circumstances,  has  been 
decreasing  with  great  rapidity  in  recent  years.  The 
thing  which  the  people  prize  most  dearly  will  be  most 
sacredly  protected  by  the  law,  and  the  lawyer  must  be 
blind  and  deaf  who  is  not  aware  that  property  is  much 
more  carefully  protected  to-day  than  life  or  liberty.  Be- 
cause of  this  worship  of  wealth  it  is  practically  impos- 
sible to  convict  a  man  of  great  wealth  of  a  crime.  Just 
as  in  the  Netherlands,  in  the  time  of  Philip  II,  it  took 
fifty  witnesses  to  convict  a  Bishop;  and  just  as  in  Eng- 
land, in  early  times,  the  privilege  of  the  clergy  protected 
learning,  just  so  here  to-day  wealth  and  social  posi- 
tion are  regarded  as  so  sacred  that  it  is  impossible  to 
execute  the  criminal  laws  against  millionaire  criminals. 
Along  with  this  condition  and  as  a  direct  result  of 
this  view  of  life,  the  courts,  state  as  well  as  Federal, 
have  been  gradually  impairing  and  destroying  the  bar- 
riers which  our  fathers  erected  against  the  exercise  of 
tyranny. 

What  would  men  in  the  days  of  the  birth  of  the  Con- 
stitution have  thought  had  courts  attempted  to  distin- 


232 


FEDERAL    USURPATION 


guish  between  guarantees  in  the  Bill  of  Rights  as  funda- 
mental and  not  fundamental?  What  would  they  have 
thought  had  the  United  States  Supreme  Court  in  their 
day  held  that  certain  of  those  guarantees  of  liberty  should 
be  applied  to  protect  citizens  and  that  others  should  not 
be  applied?  There  simply  would  have  been  a  revolu- 
tion, and  that  straightway.  The  disregard  of  those 
guarantees  in  the  Alien  and  Sedition  Laws  practically 
brought  about  the  destruction  of  the  Federalist  party, 
root  and  branch,  and  put  the  Democratic  party  in  power 
for  forty  years.  Even  seventy  years  later  the  Dred 
Scott  decision,  practically  deciding  that  the  Missouri 
Compromise  was  unconstitutional  and  that  there  were 
no  limitations  in  our  territory  upon  the  use  of  the  slave- 
holders of  their  property,  brought  about  another  revolu- 
tion. But  the  worship  of  wealth  and  the  universal  mad- 
dening struggle  for  its  attainment  in  our  day  has  stilled 
the  feelings  of  jealousy  in  men  at  the  impairment  of 
their  liberties.  If  this  tide  of  materialism  should  ebb, 
and  there  should  be  an  awakening  to  what  is  taking 
place,  serious  results  would  follow. 

In  no  direction  have  our  Federal  courts  extended 
their  power  so  far  in  recent  days  as  in  the  indiscriminate 
use  of  the  granting  of  injunctions.  The  right  to  a  tem- 
porary injunction  formerly  always  rested  upon  the  in- 
adequacy of  a  remedy  at  law,  and  the  irreparable  injury 
which  would  result  from  its  not  being  granted.  Where 
the  act,  which  was  sought  to  be  enjoined,  was  a  criminal 
act  only,  the  injunction  was  not  granted.  The  right  to 
an  injunction  was  always  based  on  apprehended  injury 
to  the  property  belonging  to  the  person  asking  for  the 


THE    UNITED   STATES   SUPREME   COURT       233 

writ.^  In  the  numerous  cases  where  the  employers  have 
procured  temporary  injunctions  against  employees  or 
labor  unions,  the  right  of  property  was  the  right  to  con- 
tinue the  relation  of  employer  or  employee,  or  assume  or 
create  such  relation  with  any  particular  person  or  per- 
sons, or  to  carry  on  business  of  a  particular  kind  or  in 
a  particular  place,  and  the  courts  construed  such  a  right 
as  a  property  right  and  as  a  basis  for  the  injunction. 
For  the  purpose  of  sustaining  the  writ  in  the  Debs  Case,^ 
the  United  States  Supreme  Court  held  that  the  United 
States  had  a  property  interest  in  the  mails,  and  that  the 
stoppage  of  trains  would  injure  this  property  right,  and 
would  also  be  an  interference  with  interstate  com- 
merce. Obstruction  of  the  mails  and  a  conspiracy 
against  interstate  commerce  is  a  crime.^  It  has  also 
held  that  the  receivers  of  a  railroad  company  actually 
may  enjoin  their  employees  for  refusing  to  haul  cars,  or 
from  even  leaving  the  receivers'  employ  so  as  to  cripple 
the  road,  or  by  any  device  to  hinder  its  operation.*  The 
intent  to  hinder  the  management  of  a  railroad  by  the 
receiver  has  been  held  sufficient  to  authorize  the  issuing 
of  a  temporary  injunction.® 

In  states  where  the  legislatures  have  enacted  stat- 
utes declaring  saloons  to  be  public  nuisances,  and  their 
existence  and  continuance  a  crime,  injunctions  have 
been  issued  at  the  instance  of  the  state,  and  the  Supreme 

•  Northern  Pacific  R.R.  v.  Whalen,  149  U.  S.,  162. 
^  Inre  Debs,  158  U.  8.,  581. 

3  U.  S.  Revised  Statutes,  Sect.  3,995,  Act  of  July  2,  1890. 

*  In  re  Lennon,  166  U.  S.,  548;  Arthur  v.  Oak,  63  Fed.  Rep., 
310. 

» In  re  DooUttle,  23  Federal  Reporter,  544. 


234 


FEDERAL    USURPATION 


Court  of  the  United  States  has  sustained  the  doctrine.* 
To  find  any  authority  for  such  writs  it  would  be  neces- 
sary to  go  back  to  the  days  of  the  Court  of  Star  Cham- 
ber, in  the  disorderly  times  that  followed  the  War  of 
the  Roses.^  The  result  is  that  the  punishment  for  crimes 
is  gradually  being  transmuted  into  contempt  proceedings, 
based  upon  mere  affidavits,  in  the  different  branches  of 
the  United  States  Supreme  Court.  And  even  when  it  is 
the  duty  of  the  United  States  to  prosecute  criminally,  it 
uses  its  obligation  as  a  foundation  of  the  equitable  remedy 
of  a  temporary  injunction,  thereby  subverting  the  right 
of  trial  by  jury.^ 

The  execution  of  the  laws  has  well  been  said  to  be 
far  more  important  than  the  making  of  them.  Respect 
for  the  courts  is  of  the  highest  public  importance,  and 
any  line  of  action  on  their  part  which  will  tend  to  create 
a  bitter  feeling  on  the  part  of  the  people  toward  them, 
should  not  be  treated  as  of  little  importance,  since  our 
hope  is  not  only  in  having  laws  honestly  and  ably  in- 
terpreted by  the  United  States  Supreme  Court,  but  in 
having  the  people  believe  that  they  are  honestly  and  ably 
interpreted.  In  view  of  this  fact,  it  is  of  great  impor- 
tance for  the  court  to  avoid  such  an  arbitrary  exercise 
of  its  power  as  will  arouse  great  opposition.  Such  op- 
position has  come  from  the  free  use  of  injunctions  and 
will  come  again. 

In  many  of  the  District  and  Circuit  Courts  of  the 
United  States  some  large  corporate  interest  of  a  public 

•  Ellenbach  v.  Plymouth,  134  U.  S.,  31. 

»  I  Spence,  Eq.  Juris.,  350;  Gneist  Eng.  Const.,  507  and  note. 

*  Professor  Langdell,  Harvard  Law  Review,  vol.  xvi,  pp.  552,  553. 


THE    UNITED   STATES   SUPREME   COURT       235 

nature,  under  the  claim  that  the  state  laws  fixing  rates 
are  confiscating  its  property,  in  the  first  instance  pro- 
cures preliminary  injunctions  staying  the  execution  of 
these  laws.  In  the  State  of  New  York,  a  few  years  ago, 
the  legislature  appointed  a  committee  to  investigate  the 
cost  of  gas  furnished  by  a  single  company  to  the  whole 
City  of  New  York.  That  committee  was  represented  by 
most  eminent  counsel.  A  most  thorough  examination 
into  the  cost  of  gas  was  made,  and  a  report  sent  to 
the  legislature,  which  passed  a  law  fixing,  as  a  maxi- 
mum price  for  gas  in  that  city,  eighty  cents  per  thousand 
cubic  feet.  That  act  was  approved  by  the  governor,  but 
its  execution  was  stayed  by  a  preliminary  injunction 
procured  from  a  United  States  Judge,  based  upon  affi- 
davits, and  the  question  of  facts  was  referred  to  a  single 
Master  in  Chancery,  according  to  whose  opinion  the 
price  fixed  amounted  to  a  confiscation  of  the  defendant's 
property.  This  finding  is  presumably  correct;  but  it  is, 
however,  a  significant  fact  that  on  June  24,  1907, 
the  day  the  Master  filed  his  report,  the  Boston  Consoli- 
dated Gas  Company  reduced  the  price  from  eighty-five 
to  eighty  cents  per  thousand  cubic  feet,  that  being  the 
fourth  reduction  the  company  had  made  during  the  last 
two  years.  The  important  consideration,  however,  is 
that  such  proceedings,  practically  annulling  state  laws 
in  the  first  instance  upon  mere  affidavits,  without  a 
hearing  or  witnesses,  and  the  reference  of  questions  of 
fact  involved  to  a  single  Master  of  Chancery,  where 
hundreds  of  millions  of  dollars  are  at  stake  upon  his 
decision,  will  in  time  become  intolerable  to  the  people 
of  every  state  where  it  occurs. 


236  FEDERAL    USURPATION 

In  Alabama,  North  Carolina,  and  in  other  states, 
the  United  States  Circuit  or  District  Judges,  in  the 
first  instance,  have  granted  such  injunctions.  The  state 
authorities  in  North  Carolina  have  practically  set  at 
defiance  such  action.  As  the  matter  becomes  discussed 
more  and  more,  unfortunate  conflicts  between  the  state 
and  national  governments  are  liable  to  arise.  I  submit 
with  all  candor  that  the  practice  of  granting  such  tem- 
porary injunctions  upon  mere  affidavits  will  become  in- 
tolerable and  will  provoke  unseemly  and  dangerous 
conflicts,  and  that  Congress  should  enact  a  law  forbid- 
ding its  exercise. 

The  review  by  the  Federal  Courts  of  the  official 
action  of  state  legislatures  and  of  the  Interstate  Com- 
merce Commission,  where  they  have  passed  upon  ques- 
tions of  fact,  will  be  found  in  practice  to  be  most  diffi- 
cult and  most  unsatisfactory.  Chief  Justice  Cooley, 
as  the  Chairman  of  the  Commission  appointed  by  Presi- 
dent Cleveland  in  1887,  said  that  the  fixing  of  freight 
rates  for  the  whole  country  by  the  Commission  would 
be  a  superhuman  task.  If  the  fixing  of  freight  rates 
by  a  commission  the  members  of  whom  give  their 
whole  attention  to  the  investigation  of  such  questions, 
and  who  hear  the  witnesses  and  judge  of  their  credibility, 
is  a  superhuman  task,  how  much  more  difficult  is  the 
task  of  the  court  which  sees  the  witnesses  upon  paper 
only?  In  a  case  years  ago,  Mr.  Justice  Brewer,  in  dis- 
cussing the  fixing  of  value  of  railway  property  and  the 
justice  of  rates  imposed  by  a  state  commission,  said : 
"  No  more  difficult  problem  can  be  presented  than  this."  ^ 

>  Ames  V.  Northern  Pac.  Ry.  Co.,  64  Fed.  Rep.,  165,  173. 


THE    UNITED    STATES   SUPREME   COURT       237 

Will  the  Federal  Courts,  with  only  the  records  before 
them,  without  hearing  the  witnesses,  without  the  advan- 
tage of  the  thousand  little  indications  of  truth  and  false- 
hood that  can  be  appreciated  only  by  those  present  dur- 
ing the  entire  investigation,  attempt  to  determine  values  ? 
Well  may  it  be  said  that  such  a  task  is  beyond  the  ability 
of  any  court  to  perform  with  justice. 

Usurpations  of  power  on  the  part  of  the  executive 
and  of  Congress  have  been  growing  more  frequent  in 
recent  days.  The  Constitution  has  conferred  such  vast 
powers  upon  the  United  States  Supreme  Court  that  it 
would  seem  that  it  should  be  satisfied  to  construe  its 
powers  so  strictly,  that  the  states,  who  have  no  authority 
over  its  action  and  who  have  surrendered  to  it  the  final 
arbitrament  of  all  their  rights,  should  find  no  real  cause 
for  discontent  with  its  decisions.  Still,  every  lawyer, 
acquainted  with  its  decisions,  especially  in  recent  years, 
is  alarmed  at  the  advancement  of  centralization.  "  For 
thirty  years,"  said  Senator  Bailey,  of  Texas,  in  the  United 
States  Senate  on  April  10,  1906,  "  the  people  of  this 
country  have  been  accustomed  to  see  the  courts  exercise 
arbitrary  and  extraordinary  power:  and  a  new  genera- 
tion of  lawyers  have  come  to  the  bar  who  think  it  treason 
and  who  call  it  anarchy  to  restrain  those  powers."  The 
Supreme  Court  should  be  placed  by  its  exalted  position 
far  above  party  strife  and  far  above  the  desire  to  exer- 
cise arbitrary  power.  Its  careful  observance  of  consti- 
tutional limitations  would  be  a  beneficial  example  not 
only  to  the  other  departments  of  government  but  to  the 
highest  courts  of  all  the  states. 


VII 
TREATY   POWER   AND    STATE   RIGHTS 


"  Above  all  nations  is  Humanity." 

GoLDwiN  Smith. 


"The  peace  of  the  nation  and  its  good  faith  and  moral 
dignity  indispensably  require  that  all  state  laws  should  be  subject 
to  the  supremacy  of  treaties  with  foreign  nations.  ...  It  is 
notorious  that  treaty  stipulations  were  grossly  disregarded  by 
the  states  under  the  Confederation.  ...  It  was  probably  to 
obviate  this  very  difificulty  that  this  clause  was  inserted  in  the 
Constitution ;  and  it  would  redound  to  the  immortal  honor  of  its 
authors  if  it  had  done  no  more  than  to  bring  treaties  within  the 

sanctuary  of  justice  as  laws  of  supreme  obligation." 

Story. 


CHAPTER   VII 

TREATY    POWER   AND   STATE    RIGHTS 

Much  has  been  written  recently  with  reference  to 
the  rights  of  the  Japanese  pupils,  in  the  public  schools 
in  San  Francisco,  under  the  treaty  of  1894  between  our 
country  and  Japan,  The  San  Francisco  affair  is  but  one 
of  many  incidents  growing  out  of  treaty  rights,  and  is 
not  so  material  as  the  general  question  of  the  rights  of 
emigrants  from  other  countries  which  have  treaties  with 
the  United  States,  securing  to  their  people  the  privi- 
leges of  the  citizens  of  this  country.  At  the  rate  of 
about  1,000,000  a  year  such  people  have  been  com- 
ing to  our  country  for  many  years  and  will  continue  to 
come.  In  the  main  they  are  the  most  helpless  of  our 
population  and  are  the  most  in  need  of  the  protection 
of  our  laws.  No  change  in  our  country  is  so  apparent 
as  the  difference  between  the  way  these  poor  immi- 
grants were  looked  upon  thirty  or  forty  years  ago  and 
to-day.  Frequently  in  our  courts  one  is  strongly  im- 
pressed with  the  inability  of  many  of  the  people  from 
foreign  lands,  especially  from  Italy,  Hungary,  Russia, 
and  China,  to  procure  protection  for  their  rights.  What 
rights  they  have  under  treaties,  and  whether  those  guar- 
antees in  the  treaties  can  be  violated  with  impunity  by 
state  authorities,  should  be  carefully  examined  and  de- 
17  341 


242  FEDERAL    USURPATION 

termined.  Such  a  careful  examination  leads  to  the  con- 
viction that  all  treaties  between  the  United  States  and 
a  foreign  country,  securing  to  the  citizens  of  the  for- 
eign country  upon  emigration  to  our  shores  the  rights 
which  we  accord  to  our  own  citizens,  is  as  much  a  part 
of  the  law  of  every  state  of  the  Union  as  though  the 
constitution  of  each  state  had  secured  the  same  rights 
to  such  immigrants. 

The  provision  of  the  Constitution  which  secures  this 
right  is  found  in  Article  6,  subdivision  2,  as  follows: 
"This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all 
treaties  made,  or  which  shall  be  made,  under  the  author- 
ity of  the  United  States,  shall  be  the  supreme  law  of  the 
land ;  and  the  judges  in  every  State  shall  be  bound  there- 
by, anything  in  the  constitution  or  laws  of  any  State  to 
the  contrary  notwithstanding."  Mr.  George  Ticknor 
Curtis  says  of  this  provision :  "  It  is  a  remarkable  cir- 
cumstance that  this  provision  was  originally  proposed  by 
a  very  earnest  advocate  of  the  rights  of  the  States — 
Luther  Martin.  His  design,  however,  was  to  supply  a 
substitute  for  a  power  over  State  legislation,  which  had 
been  embraced  in  the  Virginia  plan,  and  which  was  to 
be  exercised  through  a  negative  by  the  national  legis- 
lature upon  all  laws  of  the  States  contravening,  in  their 
opinion,  the  Articles  of  Union  or  the  treaties  subsisting 
under  the  authority  of  the  Union.  The  purpose  of  the 
substitute  was  to  change  a  legislative  into  a  judicial 
power,  by  transferring  from  the  national  legislature  to 
the  judiciary  the  right  of  determining  whether  a  State 
law  supposed  to  be  in  conflict  with  the  Constitution, 


TREATY   POWER   AND    STATE    RIGHTS         243 

laws,  or  treaties  of  the  Union  should  be  inoperative  or 
valid."  ^ 

In  construing  constitutions  and  their  provisions  it  is 
an  elementary  rule  that  you  can  consider  the  history  of 
the  times  when  the  constitution  was  formed  and  the 
evils  which  it  was  intended  to  correct  to  ascertain  the 
meaning  of  the  language.^  Even  under  the  Confedera- 
tion the  exclusive  right  to  make  treaties  was  in  the  Fed- 
eral government,  and  at  the  time  the  Constitution  was 
formed  the  states  had  not  been  accustomed  to  act  as 
sovereign  commonwealths  in  international  affairs.  The 
treaty  of  peace  of  Paris  in  1883,  between  the  United 
States  and  the  English  government,  provided  that  the 
American  loyalists,  whose  property  had  been  confiscated 
by  various  state  governments,  should  be  not  only  in- 
demnified for  their  losses  but  should  be  secured  in  the 
future;  and  it  also  provided  that  all  impediments  to  the 
collection  of  private  debts  from  Americans  to  British 
creditors  should  be  removed,  and  that  those  debts 
should  be  paid  by  the  American  debtors  in  pounds  ster- 
ling. The  people  were  indignant  that  their  government 
should  have  made  these  stipulations  in  the  treaty. 
Clergymen  cried  out  against  the  tories  from  their  pul- 
pits; bills  in  different  states  were  passed  disfranchising 
them  and  confiscating  their  estates;  ironclad  oaths 
were  required  of  them.  A  trespass  act  in  New  York 
allowed  the  patriot  owners  of  property  who  had  left  the 

'  George  Ticknor  Curtis,  Const.  History  of  the  IT.  S.,  2d 
ed.,  p.  554. 

2  Rhode  Island  v.  Mass.,  12  Peters,  '}22;ex  parte  Williams, 
114  U.  S.,  422;  Maxwell  v.  Dow,  176  U.  S.,  602. 


244  FEDERAL   USURPATION 

state  during  its  occupation  by  the  British,  to  recover 
from  the  loyalists  who  had  occupied  their  property 
damages  for  its  use  in  an  action  of  trespass.  The  differ- 
ent states  not  only  refused  to  obey  the  treaty,  but  after 
its  adoption,  as  well  as  during  the  Revolutionary  War, 
they  passed  acts  in  their  legislatures  allowing  a  debtor 
to  deposit  the  paper  money  of  the  time,  of  little  value, 
in  court,  or  in  some  states  with  the  Commissioner  of 
Loans  or  Claims,  to  the  amount  of  his  debt  to  a  British 
creditor;  and  the  law  provided  that  upon  such  deposit 
a  certificate  should  be  given  to  him  which  should  be  re- 
garded as  a  satisfaction  of  his  indebtedness.  If  the 
British  creditor  procured  a  judgment  against  the  debtor, 
collection  upon  execution  was  made  impossible  by  stay 
laws. 

The  treaty  had  provided  that  they  should  recognize 
the  rights  of  loyalists  to  their  property,  but  instead  some 
of  the  states  passed  confiscation  laws.  In  every  way  of 
which  the  people  of  the  states  could  conceive  they 
robbed  the  loyalists  of  their  property,  drove  them  from 
the  country,  resisted  the  payment  of  debts  to  English 
creditors,  and  made  a  nullity  of  the  treaty.  It  was 
because  of  such  action  that  the  British  refused  to  sur- 
render the  forts  which  they  occupied  on  our  frontier. 
The  performance  of  a  treaty  depends  upon  the  honor 
and  the  honesty  of  the  nations  which  enter  into  it,  as 
there  is  no  vindication  of  the  rights  of  the  parties  mak- 
ing it  except  through  damages  for  its  violation  or  by 
war. 

When  we  consider  these  facts  we  can  see  that  the 
statesmen  of  those  times,  in  framing  the  Constitution, 


TREATY    POWER   AND    STATE    RIGHTS         245 

naturally  would  have  made  provisions  whereby  treaties 
made  by  the  nation  could  not  be  violated  by  the  states. 
That  they  did  make  such  provision  is  very  clear.  On 
March  21,  1787,  about  two  months  before  the  meeting 
of  the  Convention  to  frame  the  Constitution  of  the  United 
States,  Congress  passed  a  resolution  which  reads :  "  Re- 
solved, That  the  legislatures  of  the  several  states  can- 
not of  right  pass  any  act  or  acts,  for  interpreting,  ex- 
plaining, or  construing  a  national  treaty  or  any  part  or 
clause  of  it ;  nor  for  restraining,  limiting,  or  in  any  man- 
ner impeding,  retarding,  or  counteracting  the  operation 
and  execution  of  the  same,  for  that  on  being  constitu- 
tionally made,  ratified,  and  published,  they  become  in 
virtue  of  the  confederation,  part  of  the  law  of  the  land, 
and  are  not  only  independent  of  the  will  and  power  of 
such  legislatures,  but  also  binding  and  obligatory  upon 
them."  1 

On  April  13th,  one  month  and  one  day  before  the 
meeting  of  the  convention  to  draft  the  Constitution 
of  the  United  States,  the  representatives  of  the  states, 
in  Congress  assembled,  prepared  a  letter  to  the  states 
asking  each  of  them  to  enact  identical  laws  of  the 
following  frame :  "  Whereas  certain  laws  or  statutes 
made  and  passed  in  some  of  the  United  States  are  re- 
garded and  complained  of  as  repugnant  to  the  treaty 
of  peace  with  Great  Britain,  by  reason  whereof  not  only 
the  good  faith  of  the  United  States  pledged  by  that  treaty 
has  been  drawn  into  question,  but  their  essential  interests 
under  that  treaty  greatly  affected.     And  whereas  justice 

1  Journals  of  Congress,  ed.  of  1801,  vol.  xii,  p.  24,  March  21, 
1787. 


246  FEDERAL    USURPATION 

to  Great  Britain  as  well  as  regard  to  the  honour  and  in- 
terests of  the  United  States  require  that  the  said  treaty 
be  faithfully  executed,  and  that  all  obstacles  thereto,  and 
particularly  such  as  do  or  may  be  construed  to  proceed 
from  the  laws  of  this  state  be  effectually  removed. 
Therefore,  Be  it  enacted  by  .  .  .  and  it  is  hereby  en- 
acted by  authority  of  the  same,  that  such  of  the  acts 
or  part  of  acts  of  the  legislature  of  this  state  as  are 
repugnant  to  the  treaty  of  peace  between  the  United 
States  and  his  Britannic  Majesty,  or  any  article  thereof, 
shall  be  and  hereby  are  repealed.  And  further,  that 
the  courts  of  law  and  equity  within  this  state  be,  and 
they  hereby  are  directed  and  required  in  all  causes  and 
questions  cognizable  by  them  respectively,  and  arising 
from  or  touching  the  said  treaty,  to  decide  and  adjudge 
according  to  the  tenor,  true  intent,  and  meaning  of  the 
same,  anything  in  the  said  acts,  or  parts  of  acts,  to  the 
contrary  thereof  in  any  wise  notwithstanding."  ^  The 
letter  which  accompanied  this  proposed  law  stated  that 
it  was  drafted  in  a  general  form,  repealing  all  acts  or 
clauses  in  said  laws  repugnant  to  the  treaty,  because  the 
business  of  determining  what  acts  and  clauses  were  re- 
pugnant to  the  treaty  would  be  turned  over  to  the  judi- 
cial department,  and  "  the  courts  of  law  would  find  no 
difficulty  in  deciding  whether  any  particular  act  or  clause 
is  contrary  to  the  treaty." 

Now  Madison,  who  more  than  any  other  member  of 

the  Constitutional  Convention  guided  its  action,  when  a 

member  of  Congress  was  instrumental  in  bringing  about 

the  passage  of  this  resolution  of  March  21st  and  drafted 

•  Journals  of  Cong.,  ed.  of  1801,  vol.  xii,  p.  35. 


TREATY   POWER   AND   STATE    RIGHTS         247 

the  proposed  law  of  April  13th  for  the  states.  Gorham 
was  not  only  a  member  of  that  Congress,  but  he  was  one 
of  the  framers  of  that  very  clause  of  the  Constitution 
of  the  United  States  which  we  have  cited  above,  and  also 
a  member  of  the  first  committee  of  five  which  reported 
the  original  draft  of  the  Constitution.  Johnson,  the  Chair- 
man of  the  second  committee  of  five,  and  Hamilton  and 
King,  members  of  the  committee  which  reported  the  re- 
vised draft  of  the  Constitution,  were  also  members  of 
the  Congress  which  in  March  and  April  passed  the  above 
resolution  and  prepared  the  proposed  law. 

The  original  clause  adopted  by  the  Constitutional 
Convention  with  reference  to  the  treaty-making  power 
is  as  follows :  "  This  Constitution,  and  the  laws  of  the 
United  States  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  several 
states  and  of  their  citizens  and  inhabitants,  and  the 
judges  in  the  several  states  shall  be  bound  thereby  in 
their  decisions,  anything  in  the  constitutions  or  laws  of 
the  several  states  to  the  contrary  notwithstanding."  ^ 
The  second  committee  of  five,  which  gave  us  the  final 
draft  of  the  Constitution,  struck  out  the  words  "  several 
states  and  of  their  citizens  and  inhabitants,"  and  left  the 
law  reading,  "  shall  be  the  supreme  law  of  the  land." 
The  words  "  supreme  law  of  the  land  or  a  part  of  the 
law  of  the  land  "  is  an  expression  taken  from  the  law 
of  nations;  and  was  especially  used  in  the  common  law, 
with  reference  to  treaties,  as,  a  law  which  could  not  be 
affected  by  the  law  of  the  legislature,  but  prevailed  as 
»  Elliot's  Deb.,  vol.  i,  pp.  265,  266. 


248  FEDERAL    USURPATION 

the  superior  law  throughout  the  extent  of  the  nation 
entering  into  the  treaty.  Every  lawyer  in  the  Constitu- 
tional Convention  was  undoubtedly  familiar  with  Black- 
stone's  words,  "  In  arbitrary  states  this  law  "  (i.  e.,  the 
law  of  nations)  "  whenever  it  contradicts  or  is  not  pro- 
vided for  by  the  municipal  law  of  the  country,  is  en- 
forced by  the  royal  power ;  but  since  in  England  no  royal 
power  can  introduce  a  new  law,  or  suspend  execution 
of  the  old,  therefore,  the  law  of  nations  "  (whenever  any 
question  arises  which  is  properly  the  object  of  its  juris- 
diction) "  is  here  adopted  in  its  full  extent  by  the  com- 
mon law  and  is  held  to  be  a  part  of  the  law  of  the  land."  ^ 

In  the  case  of  Trevett  v.  Weeden  the  "  law  of  the 
land  "  of  Rhode  Island  was  involved.  Rhode  Island  had 
no  written  constitution,  yet  her  legislature  had  declared 
that  the  refusal  to  accept  the  paper  money  issued  in 
1786,  in  payment  for  goods  purchased,  should  be  re- 
garded as  a  crime ;  and  that  the  persons  charged  with 
such  crime  should  be  tried  before  three  magistrates 
without  a  jury,  and  that  they  might  be  found  guilty  by 
a  majority  of  the  judges  present  according  to  the  laws 
of  the  land.  The  Supreme  Court  of  that  state  held  that 
this  was  not  according  "  to  the  law  of  the  land,"  as  the 
right  of  trial  by  jury  was  a  superior  right  which  no 
statute  of  a  state  could  destroy ;  and  this  was  held  in 
a  state  which  had  no  written  constitution  in  the  modern 
sense  at  the  time  the  law  was  passed  and  the  decision 
made. 

In  the  next  year,  at  Newbern,  N.  C,  in  the  case 
of  Bayard  zk  Singleton,  the  supreme  court  of  that 
*  Blackstone,  vol.  iv,  ch.  v,  p.  67. 


TREATY   POWER   AND   STATE   RIGHTS         249 

State  held  that  the  act  which  permitted  a  purchaser  of 
confiscated  estates  from  the  Commissioner  of  the  State, 
when  action  was  brought  against  him  by  the  real  owner 
to  recover  possession  of  the  lands,  to  present  his  cer- 
tificate of  purchase  from  the  Commissioner  and  move 
that  the  case  be  dismissed  upon  his  affidavit  filed,  was 
not  "  the  law  of  the  land"  because  it  failed  to  give  the 
plaintiff  the  right  of  trial  by  jury  which  was  part  of  the 
"  supreme  law  of  the  land."  Eight  of  the  different 
states  in  their  written  constitutions  expressly  mentioned 
the  "  supreme  law  of  the  land  "  as  being  superior  to  any 
law  which  could  be  passed  by  the  legislature. 

On  January  16,  1788,  General  C.  C.  Pinckney,  speak- 
ing in  the  South  Carolina  Convention  for  the  adoption 
of  the  Constitution,  contended  that  even  the  Articles  of 
Confederation  bound  the  people  of  the  different  states 
by  a  treaty  as  well  as  does  the  Constitution  of  the  United 
States,  saying :  "  Indeed,  the  doctrine  that  the  king  of 
Great  Britain  may  make  a  treaty  with  a  foreign  state, 
which  shall  irrevocably  bind  his  subjects,  is  asserted  by 
the  best  writers  on  the  laws  and  constitution  of  Eng- 
land— particularly  by  Judge  Blackstone,  who,  in  the  first 
book  of  his  Commentaries  (ch.  vii,  p.  257),  declares 
*  that  it  is  the  king's  prerogative  to  make  treaties,  leagues, 
and  alliances  with  foreign  states  and  princes,  and  that 
no  other  power  in  the  kingdom  can  legally  delay,  resist, 
or  annul  them.'  If  treaties  entered  into  by  Congress 
are  not  to  be  held  in  the  same  sacred  right  in  America, 
what  foreign  nation  will  have  any  confidence  in  us? 
Shall  we  not  be  stigmatized  as  a  faithless,  unworthy 
people,  if  each  member  of  the  Union  may,  with  impunity, 


250  FEDERAL   USURPATION 

violate  the  engagements  entered  into  by  the  federal 
government?  Who  will  confide  in  us?  Who  will  treat 
with  us  if  our  practice  should  not  be  conformable  to  this 
doctrine  ?  .  .  .  I  contend  that  the  article  in  the  new  Con- 
stitution, which  says  that  treaties  shall  be  paramount  to 
the  laws  of  the  land,  is  only  declaratory  of  what  treaties 
were,  in  fact,  under  the  old  compact.  They  were  as 
much  the  law  of  the  land  under  that  Confederation,  as 
they  are  under  this  Constitution;  and  we  shall  be  un- 
worthy to  be  ranked  among  civilized  nations  if  we  do  not 
consider  treaties  in  this  view,  .  .  .  Burlamaqui,  another 
writer  of  great  reputation  on  political  law,  says :  '  that 
treaties  are  obligatory  on  the  subjects  of  the  powers  who 
enter  into  treaties;  they  are  obligatory  as  conventions 
between  the  contracting  powers ;  but  they  have  the  force 
of  law  with  respect  to  their  subjects,' "  ^ 

The  delegates  from  the  different  states  in  the  Con- 
stitutional Convention  well  understood  that  this  pro- 
vision in  the  Constitution  as  to  treaties  was  to  be  the 
paramount  law  of  the  whole  land,  binding  the  citizens 
and  the  legislature  of  every  state  just  as  effectively  as 
it  bound  the  national  government.  In  the  New  York 
Convention,  Lansing,  who  was  a  member  of  the  Con- 
vention framing  the  Constitution,  portrayed  the  dangers 
of  putting  such  a  power  in  the  hands  of  the  executive 
and  the  Senate,  and  offered  this  resolution :  "  Resolved, 
as  the  opinion  of  this  committee,  that  no  treaty  ought 
to  operate  so  as  to  alter  the  constitution  of  any  state ; 
nor  ought  any  commercial  treaty  to  operate  so  as  to 
abrogate  any  law  of  the  United  States."  ^ 
'  Elliot's  Deb.,  vol.  iv,  pp.  278,  279.     ^EUiot'sDeb.,  vol.  ii,  p.  409. 


TREATY    POWER   AND    STATE    RIGHTS         251 

Foreign  treaties,  as  a  rule,  for  reasons  which  will 
be  apparent  on  reflection  to  everybody,  always  have 
been  intrusted  to  the  king,  the  president,  or  the  head 
of  the  nation.  John  C.  Calhoun,  in  the  House  of  Rep- 
resentatives on  January  8,  1816,  referring  to  our  obliga- 
tion to  act  with  the  rest  of  the  world  through  a  single 
head,  said :  "  The  enumeration  of  legislative  powers  in 
the  Constitution  has  relation,  then,  not  to  the  treaty- 
making  power,  but  to  the  powers  of  the  states.  In  our 
relation  to  the  rest  of  the  world  the  case  is  reversed. 
Here  the  states  disappear.  Divided  within,  we  present, 
without,  an  exterior  of  undivided  sovereignty.  The 
wisdom  of  the  Constitution  appears  conspicuous.  When 
enumeration  was  needed,  there  we  find  the  powers 
enumerated  and  exactly  defined ;  when  not,  we  do  not 
find  what  would  be  vain  and  pernicious  to  attempt. 
Whatever,  then,  concerns  our  foreign  relations,  what- 
ever requires  the  consent  of  another  nation,  belongs  to 
the  treaty  power — can  only  be  regulated  by  it ;  and  it 
is  competent  to  regulate  all  such  subjects,  provided — 
and  here  are  its  true  limits — such  regulations  are  not 
inconsistent  with  the  Constitution."  ^  This  is  the  lan- 
guage of  the  great  expounder  of  state  rights ;  but  in  it 
we  see  not  a  word  about  the  United  States  having  the 
right  to  make  treaties  only  so  far,  and  upon  only  such 
subjects  as  are  delegated  by  the  people  to  Congress. 
The  only  limitation  which  he  states  is  that  the  treaty 
regulations  must  not  be  inconsistent  with  the  Consti- 
tution. 

That  Mr.  Calhoun,  who  championed  the  cause  of 
»  Elliot's  Deb.,  vol.  iv,  p.  464. 


252  FEDERAL    USURPATION 

state  rights,  did  not  believe  for  one  moment  that  a 
treaty  was  not  a  law  controlling  the  different  states 
and  all  of  their  inhabitants  as  effectually  as  it  controlled 
the  national  government  itself  is  well  seen  in  the  fol- 
lowing statement  of  his  views.  According  to  his  opin- 
ion, the  only  limitations  on  the  treaty-making  power 
were  as  follows:  First,  It  is  limited  strictly  to  questions 
of  inter  alios,  "  all  such  clearly  appertain  to  it."  Second, 
"  By  all  the  provisions  of  the  Constitution  which  in- 
hibit certain  acts  from  being  done  by  the  Government 
or  any  of  its  departments."  Third,  "  By  such  pro- 
visions of  the  Constitution  as  direct  certain  acts  to  be 
done  in  a  particular  way,  and  which  prohibit  the  con- 
trary." Fourth,  "  It  can  enter  into  no  stipulation  cal- 
culated to  change  the  character  of  the  Government,  or 
to  do  that  which  can  only  be  done  by  the  Constitution- 
making  power ;  or  which  is  inconsistent  with  the  nature 
and  structure  of  the  Government  or  the  objects  for 
which  it  was  formed."  ^ 

From  the  above  discussion  we  reach  the  conclusion 
that  the  treaty  power,  as  expressed  in  the  Constitution, 
is  unlimited,  except  by  those  restraints  which  are  found 
in  the  Constitution  against  the  action  of  the  general 
government  or  its  departments,  and  those  arising  from 
the  nature  of  the  government  itself.  We  could  not  by 
treaty  change  the  character  of  our  government,  cede  a 
portion  of  our  territory,  or  make  any  fundamental 
changes  thereof.  But  with  these  exceptions  every  pro- 
vision of  a  treaty  made  with  a  foreign  government  is  as 
binding  upon  the  citizens  of  each  state  as  a  provision 
»  People  V.  Gerke  &  Clark,  5  Calif.  Reports,  §  p.  384. 


TREATY   POWER   AND    STATE   RIGHTS        253 

of  their  own  constitution,  or  an  act  of  their  legislature 
authorized  by  their  constitution.^ 

The  recent  contention  of  the  State  of  California, 
wherein  it  is  claimed  that  the  reserved*  rights  of  the 
states  cannot  be  affected  by  the  treaty  power,  has  not  a 
particle  of  foundation.  Of  course  the  power  of  making 
treaties  comprehends  only  those  objects  which  are  usu- 
ally regulated  by  treaties  and  cannot  be  otherwise  regu- 
lated. But  within  that  limitation  the  provisions  of  a  treaty 
fixing  the  rights  of  immigrants  from  foreign  lands  is 
as  binding  upon  the  people  of  every  state,  and  upon 
the  states  themselves,  as  would  be  the  constitution  of 
the  state  or  the  laws  made  pursuant  thereof  by  the 
legislature.  And  the  whole  talk  which  we  have  seen 
in  the  newspapers  in  recent  days  over  the  reserved 
rights  of  California,  and  her  right  to  disregard  a  treaty 
of  the  United  States,  has  not  a  particle  of  foundation. 
If  any  question  was  ever  put  beyond  doubt  by  a  uni- 
form course  of  decisions  in  the  United  States  Supreme 
Court,  almost  from  the  date  of  the  Constitution  down 
until  the  present  day,  it  is  the  above  proposition. 

The  word  "  treaty  "  at  the  time  of  making  the  Con- 
stitution had  a  distinct  and  well-defined  meaning,  and 
covered  the  agreement  between  the  sovereign  powers 
of  two  governments  regulating,  among  other  things,  the 
status  of  their  citizens  emigrating  from  the  country  of 
the  one  to  the  country  of  the  other.  That  power  had 
always  been  exercised  by  the  king,  or  president,  or  the 
single  supreme  one-man  power  of  any  government,  or, 
when  such  a  power  did  not  exist,  by  its  legislature. 
>  Geofroy  v.  Riggs,  133  U.  S.,  258,  267. 


254  FEDERAL   USURPATION 

The  whole  of  the  treaty-making  power  was  conferred 
upon  our  national  government,  for  the  Constitution 
provides  that  "  No  state  shall  enter  into  a  treaty,  alli- 
ance, or  confederation." 

As  early  as  1796  the  question  arose  as  to  the  effect 
of  the  treaty  of  peace  with  Great  Britain,  made  under 
the  Confederation  in  1783,  upon  laws  enacted  prior  as 
well  as  subsequent  to  the  treaty  by  the  State  of  Vir- 
ginia. At  the  time  of  the  making  of  that  treaty  the 
merchants  of  Virginia  were  largely  indebted  to  British 
creditors.  Most  of  those  debts  arose  prior  to  the  com- 
mencement of  the  Revolutionary  War,  and  the  war  sus- 
pended the  running  of  the  statute  of  limitations.  The 
treaty  of  1783  recognized  the  legality  of  such  claims, 
and  provided  that  they  should  be  paid,  not  with  the 
paper  money  of  the  colonies,  but  with  gold  and  silver, 
the  currency  of  the  world.  Virginia,  among  other 
states,  passed  a  law  permitting  the  debtor  to  pay  the 
amount  of  the  debt  in  paper  money  to  the  Commissioner 
of  Loans,  w^hereupon  he  should  be  given  by  the  Com- 
missioner a  certificate  of  payment,  w^hich  the  law  pro- 
vided was  satisfaction  of  the  debt.  A  defendant,  Hil- 
ton, had  complied  with  this  statute  and  procured  his 
certificate,  and  the  sufficiency  of  that  certificate  as 
against  the  treaty  was  directly  involved.  The  United 
States  Supreme  Court,*  with  only  one  dissenting  Judge, 
held,  that  under  the  Confederation,  as  well  as  under 
the  Constitution,  the  treaty  was  the  supreme  law  of  the 
land,  and  that  the  statute  of  Virginia  was  void,  saying: 
"  A  treaty  cannot  be  the  supreme  law  of  the  land,  that 
>  Ware  v.  Hilton,  3  Dallas,  211. 


TREATY   POWER   AND   STATE    RIGHTS         255 

is,  of  all  the  United  States,  if  any  act  of  a  state  legis- 
lature can  stand  in  its  way."  The  creditor  was  allowed 
to  recover  the  full  amount  of  his  claim,  notwithstanding 
the  payment  by  the  debtor  of  the  full  amount  thereof 
in  paper  money  to  the  Virginia  Commissioner. 

Then  followed  a  large  number  of  cases  in  which,  by 
the  statutes  of  the  different  states,  an  alien  was  pro- 
hibited from  taking  title  by  descent  and  sometimes  by 
devise ;  other  cases  also,  involving  the  rights  of  loyalists 
and  their  devisees  to  lands  in  the  different  states  where 
the  states  had  confiscated  their  titles.  All  these  mat- 
ters, as  the  reader  will  see,  were  matters  entirely  of 
domestic  law,  the  control  of  which  the  states  had  re- 
served absolutely  to  themselves.  No  grant  of  power  to 
the  national  government  covers  a  single  one  of  them, 
and  they  were  matters  peculiarly  within  the  control  of 
domestic  legislation.  And  yet  the  Federal  courts  and 
the  state  courts,  in  numerous  cases,  held  that  treaties 
giving  to  aliens,  or  to  grantees,  heirs,  or  devisees  of  a 
loyalist,  rights  to  real  estate,  in  the  very  teeth  of  state 
statutes  to  the  contrary,  were  controlling.^     In  Hauen- 

'  State  of  Georgia  v.  Brailsford,  3  Dallas,  i ;  Fairfax  v. 
Hunter,  7  Cranch,  603 ;  Craig  v.  Radford,  3  Wheaton,  594;  Orr  v. 
Hodgson,  4  Wheaton,  453;  Shirac  v.  Shirac,  2  Wheaton,  259; 
Pollard  V.  Kibbey,  14  Peters,  353,  412,  415;  Spratt  v.  Spratt,  i 
Peters,  342;  People  v.  Gerke,  5  Calif.,  381;  Watson  v.  Donnelly, 
28  Barber,  653;  Maiden  v.  IngersoU,  6  Mich.,  373;  Rebassess 
Succession,  47  La.  Ann.,  1,452;  Chy  Lung  v.  Freeman,  92  U.  S., 
275 ;  in  re  Parrott,  6  Sawyer,  349 ;  Baker  v.  The  City  of  Portland, 
5  Sawyer,  566;  Yeaker  v.  Yeaker,  4  Metcalf  (Ky.),  ^^,  also  81 
American  Decisions,  530-534;  Baker  v.  Shy,  9  Heisk,  85,  89; 
Wunderle  v.  Wunderle,  144  111.,  40;  Monroe  v.  Merchant,  28 
N.  Y.,  9,  39;  in  re  Becks  Estate,  31  N.  Y.  State  Reporter,  965; 


256  FEDERAL    USURPATION 

Stein  V.  Lynham,^  the  United  States  Supreme  Court  said : 
"  It  must  always  be  borne  in  mind  that  the  Constitution, 
laws,  and  treaties  of  the  United  States  are  as  much  a 
part  of  the  law  of  every  state  as  its  own  local  laws  and 
constitution.  This  is  a  fundamental  principle  in  our  sys- 
tem of  complex  national  polity,"  citing  many  cases. 

Mr.  Butler,  in  his  work  on  The  Treaty-Making 
Power,  summarizes  the  holding  of  the  cases  as  follows: 
"  First,  That  the  treaty-making  power  of  the  United 
States,  as  vested  in  the  central  government,  is  derived 
not  only  from  the  powers  expressly  conferred  by  the 
Constitution,  but  that  it  is  also  possessed  by  that  gov- 
ernment as  an  attribute  of  sovereignty,  and  that  it  ex- 
tends to  every  subject  which  can  be  the  basis  of  nego- 
tiation and  contract  between  any  of  the  sovereign  powers 
of  the  world,  or  in  regard  to  which  the  several  states 
of  the  Union  themselves  could  have  negotiated  and 
contracted  if  the  Constitution  had  not  expressly  pro- 
hibited the  states  from  exercising  the  treaty-making 
power  in  any  manner  whatever  and  vested  that  power 
exclusively  in  and  expressly  delegated  it  to  the  Federal 
government.  Second,  That  the  power  to  legislate  in 
regard  to  all  matters  affected  by  treaty  stipulations  and 
relations  is  coextensive  with  the  treaty-making  power, 
and  that  acts  of  Congress  enforcing  such  stipulations 
which,  in  the  absence  of  treaty  stipulations,  would  be 
unconstitutional  as  infringing  upon  the  powers  reserved 
to  the   states,  are   constitutional   and   can   be  enforced 

Ho  Ah  Kow  V.  Nunan,  5  Sawyer,  552;  KuU  v.  Kull,  37  Hun, 
476;  Opel  V.  Shoup,  100  la.,  420;  Comet  v.  Winton,  2  Yerg.,  143. 
>  Hauenstein  v.  Lynham,  100  U.  S.,  490. 


TREATY    POWER    AND    STATE    RIGHTS         257 

even  though  they  may  conflict  with  state  laws  or  pro- 
visions of  state  constitutions.  Third,  That  all  provi- 
sions in  state  statutes  or  constitutions  which  in  any  way 
conflict  with  any  treaty  stipulations,  whether  they  have 
been  made  prior  or  subsequent  thereto,  must  give  way 
to  the  provisions  of  the  treaty,  or  act  of  Congress  based 
on  and  enforcing  the  same,  even  if  such  provisions  re- 
late to  matters  wholly  within  state  jurisdiction." 

There  are  certain  cases  which  do  not  seem  at  first 
sight  to  be  in  accord  with  the  cases  cited.  Thus,  Chief 
Justice  Taney  says  ^  that  the  treaty-making  power  of 
the  United  States,  in  order  to  be  legitimately  and  con- 
stitutionally exercised,  must  be  employed  in  full  recog- 
nition and  subordination  to  the  constitutional  powers  of 
the  several  states;  although  the  treaty-making  power, 
in  carrying  out  the  purposes  and  designs  of  the  framers 
of  the  Constitution,  excludes  the  states  from  all  inter- 
course with  all  foreign  nations,  still  this  power  is  of  no 
higher  order  than  any  other  power  of  the  Federal  gov- 
ernment, and  that  all  must  be  exercised  in  full  recogni- 
tion and  subordination  to  the  constitutional  rights  of  the 
several  states.^  But  all  these  remarks  will  be  found  un- 
necessary to  the  decision  of  the  particular  case  before 
the  court,  and,  in  view  of  the  many  authorities  to  the 
contrary,  the  rule  would  seem  to  be  that  if  the  subject 
of  the  treaty  be  a  subject  of  international  diplomacy,  it 
not  only  may  contravene  the  statute  of  a  state  but  it 

'  Holmes  v.  Jennison  et  al.,  14  Peters,  546,  569. 
2  Mayor  of  New  Orleans  v.  U.  S.,  10  Peters,  66;  License  Cases, 
5  Howard  (513)  per  Daniel  J.;  Passenger  Cases,  7  Howard,  783 

(507)- 

18 


258  FEDERAL    USURPATION 

becomes  the  absolute  law  of  that  state.  Treaties  are  en- 
titled to  a  liberal  construction  in  favor  of  those  claim- 
ing under  them.^  If,  therefore,  the  people  of  any  other 
country  are  secured  privileges  and  immunities  in  our 
own  country  by  virtue  of  a  treaty,  the  provisions  of  that 
treaty,  if  admitting  of  two  constructions,  the  one  narrow, 
the  other  liberal  in  its  nature,  the  latter  is  always  to  be 
preferred. 

In  March,  1891,  a  number  of  Italian  criminals  in 
New  Orleans  murdered  the  Chief  of  Police  of  that  city. 
He  had  been  especially  active  in  following  them  up  in 
their  crimes,  and  in  revenge  therefor,  at  a  given  signal 
in  the  night  time  given  by  an  Italian  boy,  he  was  shot 
and  killed.  Nine  of  the  ItaHans  supposed  to  have  been 
guilty  of  the  offense  were  brought  to  trial.  The  jury 
acquitted  six  of  them  and  disagreed  in  the  case  of  the 
other  three.  On  the  night  following  the  end  of  this  trial 
a  mob  broke  into  the  prison,  took  out  the  Italian  pris- 
oners and  shot  them.  The  Italian  government,  through 
its  minister,  demanded  that  the  lynchers  should  be  pun- 
ished and  that  an  indemnity  should  be  paid.  Mr.  Blaine, 
who  was  at  that  time  Secretary  of  State,  in  answer  to 
this  demand  took  the  position  that  the  United  States 
government  had  no  local  jurisdiction  in  Louisiana,  but 
that  the  courts  of  that  state  were  open  to  the  Italian 
government  for  prosecution.  He  assured  the  Italian 
minister  that  the  national  government  would  urge  the 
state  government  to  institute  criminal  proceedings 
against  the  leaders  of  the  mob.     The  Italian  minister, 

»  Tucker  v.  Alexandroff,  183  U.  S.,  424,  437;  Chew  Keong  v. 
United  States,  112  U.  S.,  540  of  opinion. 


TREATY   POWER   AND    STATE   RIGHTS         259 

Baron  Fava,  not  satisfied  with  this  answer,  left  Washing- 
ton without  any  notice  to  our  g-overnment  and  returned 
to  Italy,  and  the  American  minister  at  Rome  left  Italy. 
It  was  afterwards  ascertained  that  only  three  of  the  nine 
Italians  killed  were  subjects  of  the  King  of  Italy,  the 
rest  having  been  naturalized  in  this  country,  and  the 
matter  was  adjusted  by  the  payment  of  $25,cxx>  to  the 
relatives  of  the  men  killed. 

This  attitude  of  our  government  was  alleged  to  have 
been  taken  because  Congress  had  passed  no  statute 
making  the  offense  a  crime  and  prescribing  the  punish- 
ment therefor.  Chief  Justice  Marshall,  in  Foster  v.  Niel- 
son,^  says :  "  Our  Constitution  declares  a  treaty  to  be  the 
law  of  the  land.  It  is,  consequently,  to  be  regarded  in 
courts  of  justice  as  equivalent  to  acts  of  the  legislature, 
whenever  it  operates  of  itself  without  the  aid  of  any 
legislative  provision."  Undoubtedly  the  relatives  of  the 
murdered  Italians  could  have  enforced  a  civil  remedy  in 
the  United  States  court,  and  in  the  courts  of  Louisiana, 
against  the  persons  connected  with  their  murder.  The 
difficulty  with  enforcing  a  criminal  proceeding  on  the 
part  of  the  national  government  is  that  the  national 
courts  have  no  common-law  jurisdiction  of  crimes,  their 
jurisdiction  depending  absolutely  upon  national  statutes 
prescribing  the  causes  for  which  convictions  can  be  ob- 
tained, and  also  the  punishments  which  may  be  inflicted 
There  is  no  question  but  that  the  United  States  govern- 
ment can  pass  a  statute  making  such  an  act  a  crime  and 
enforce  it.^ 

'  Foster  v.  Nielson,  2  Peters,  253. 
2  Baldwin  v.  Franks,  120  U.  8.,  678. 


26o  FEDERAL    USURPATION 

The  national  government,  however,  has  never  shown 
any  great  anxiety  to  enforce  the  treaty  rights  of  its  alien 
population.  Its  attitude  toward  the  State  of  CaUfornia 
in  the  recent  matter  was  by  no  means  so  strenuous  as 
was  shadowed  forth  in  the  message  of  the  President.  In 
many  states  there  exists  a  bitter  feeling  on  the  part  of 
the  people  toward  the  alien  population.  It  is  easy  for 
demagogues  to  fan  that  feeling  into  a  flame  of  passion, 
and  it  is  a  most  common  occurrence  for  the  aliens' 
rights  to  be  violated.  The  reason  of  this  impotency  is 
very  apparent  to  one  who  appreciates  the  importance  to 
political  parties  of  securing  the  votes  of  the  people  of 
the  states.  The  voting  population  of  the  state  is  gen- 
erally hostile  to  the  alien  population.  Some  of  them  re- 
gard aliens  as  taking  away  their  jobs.  They  are  turned 
away  from  them  in  many  cases  by  their  customs  and 
manners  of  life.  They  regard  them  as  merely  transient 
people  ready  to  return  to  their  own  country  when  they 
have  accumulated  any  property.  Injustice  toward  them 
under  such  circumstances  is  very  common. 

The  United  States  government,  in  support  of  treaty 
rights,  can  easily  pass  statutes  prescribing  the  acts  which 
are  criminal  on  the  part  of  the  citizens  of  states  against 
their  alien  population  and  fixing  the  punishment  upon 
conviction,  if  it  would.  It  likewise  has  the  power  to  pro- 
tect their  rights  with  national  troops.  In  the  Debs  Case, 
Mr.  Justice  Brewer,  speaking  with  reference  to  the 
United  States  government  depending  upon  the  states  for 
the  enforcement  of  the  national  laws,  said :  "  There  is  no 
such  impotency  in  the  national  government.  The  entire 
strength  of  the  nation  may  be  used  to  enforce  in  any  part 


TREATY    POWER   AND   STATE   RIGHTS         261 

of  the  land  the  full  and  free  exercise  of  all  national  pow- 
ers ;  and  the  security  of  all  rights  intrusted  by  the  Consti- 
tution to  its  care.  The  strong  arm  of  the  national  gov- 
ernment may  be  put  forth  to  brush  away  all  obstructions 
to  the  freedom  of  interstate  commerce,  or  the  transporta- 
tion of  the  mails.  If  the  emergency  arises,  the  army  of 
the  nation,  and  all  its  militia,  are  at  the  service  of  the 
nation  to  compel  obedience  to  its  laws." 

Notwithstanding  that  the  national  government  has 
this  power,  our  alien  population,  protected  fully  by 
treaties,  quite  frequently  are  assaulted  by  mobs  and  their 
rights  destroyed  or  imperiled,  and  little  opportunity  is 
given  in  the  United  States  courts  for  redressing  the 
wrongs.  These  alien  laborers,  in  the  last  twenty  years, 
have  constructed  thousands  of  miles  of  railway,  and  tens 
of  thousands  of  miles  of  roads  and  streets.  In  the  main, 
they  are  ignorant  of  our  language,  ignorant  of  our  laws, 
subject  to  imposition,  and  helpless  in  the  enforcement  of 
their  rights  in  the  courts.  We  owe  it  to  them,  and  we 
owe  it  still  more  to  ourselves,  to  protect  them.  The  na- 
tional government  ought  to  see  to  it  that  laws  are  passed 
protecting  them  from  injuries.  The  Queue  Case  in 
California,  the  imprisonment  of  a  considerable  number 
of  Chinamen  in  Boston  a  few  years  ago  for  the  purpose 
of  ascertaining  if  each  of  them  had  certificates,  the 
ruthless  treatment  extended  to  Italians,  Hungarians,  and 
Chinamen  all  over  our  country,  are  a  disgrace  to  us,  an 
injury  to  us  in  foreign  countries,  and  demand  immediate 
remedial  action  on  the  part  of  the  national  government. 

The  school  law  of  California  passed  in  the  year  1903 
provides  that  "  The  trustees  shall  have  the  power  to  ex- 


262  FEDER.\L    USURPATION 

elude  all  children  of  filthy  or  vicious  habits,  or  children 
suffering  from  contagious  or  infectious  diseases,  and  also 
to  establish  separate  schools  for  Indian  children  and 
for  children  of  Mongolian  or  Chinese  descent;  when 
separate  schools  are  established,  Indian,  Chinese,  or 
Mongolian  children  must  not  be  admitted  into  any  other 
school."  ^  The  school  board  of  San  Francisco,  pursuant 
to  this  statute,  passed  an  order  undec  date  of  October  ii, 
1906,  requiring  all  pupils  of  Mongolian  descent  in  the 
city  to  attend  the  oriental  school  on  Qay  Street,  in  the 
burned  section  of  the  city.  The  Secretarj'  of  Commerce 
and  Labor,  in  his  report  to  the  President  of  November 
26,  1906,  said :  "  If  the  action  of  the  Board  stands,  then, 
and  if  no  schools  are  provided  in  addition  to  the  one 
mentioned,  it  seems  that  a  nimiber  of  Japanese  children 
will  be  prevented  from  attending  the  schools  and  will 
have  to  resort  to  private  instruction." 

It  is  said  by  United  States  Senator  Fulton,  of  Ore- 
gon,* that  the  Japanese  excluded  from  the  public  schools 
provided  for  white  children  in  San  Francisco  were  very 
largely  adults  who,  because  they  were  beginners,  neces- 
sarily entered  the  primary  grades,  and,  in  consequence, 
were  brought  into  intimate  association  with  the  young 
white  children  of  those  grades.  This  is  urged  as  a  rea- 
son why  the  school  board  had  the  right  in  their  discretion 
to  relegate  to  the  oriental  school  on  Clay  Street  ninety- 
three  Japanese  students  who  attended  the  various  schools 
in  that  city  from  July,  1906,  until  the  following  October. 
There  is  considerable  force  in  this  contention.    The  state 

'  School  Law  of  California.  Art.  X,  Section  1662. 
*  North  American  Rei'tew,  December  21,  1906. 


TREATY   POWER   AND   STATE    RIGHTS        263 

is  under  no  legal  obligation  to  create  schools  even  for  its 
native  children;  and  it  has  been  held  that  it  is  within 
its  power  and  discretion,  and  not  in  violation  of  the 
Fourteenth  Amendment  to  the  Constitution,  to  create 
separate  schools  for  negroes,  affording  them  the  same 
opportunities  for  education  in  those  schools  as  it  does 
the  white  children.^ 

The  treaty  provides  that  "  As  respects  rights  of  resi- 
dence and  travel,  the  possession  of  goods  and  effects  of 
any  kind,  the  succession  to  personal  property  and  the 
disposal  of  property  of  any  sort,  the  citizens  or  subjects 
of  each  country  shall  enjoy  in  the  other  the  same  privi- 
leges, liberties,  and  rights  as,  and  to  be  subject  to  no 
higher  imposts  and  charges  than,  native  subjects  or  citi- 
zens of  the  most  favored  nation."  It  would  seem  that 
the  rights  of  residence,  without  any  limitation  under  this 
provision,  secured  to  the  children  of  Japanese  immi- 
grants the  same  privileges,  liberties,  and  rights  in  the 
schools  as  were  enjoyed  by  the  children  of  our  own 
citizens.  But  Mr.  Richard  Olney,  who  as  Secretary  of 
State  in  Mr.  Cleveland's  administration  negotiated  the 
treaty,  contends  that  the  final  clause  reserved  a  right 
and  discretion  in  the  state  authorities  of  California  to  do 
exactly  what  they  did  do  with  reference  to  Japanese 
pupils.  This  clause  provides :  "  It  is,  however,  under- 
stood that  the  stipulations  contained  in  this  and  the 
preceding  article  do  not  in  any  way  affect  the  laws, 
ordinances,    and    regulations    in    regard    to    trade,    the 

>  Roberts  u.  City  of  Boston,  5  Gushing,  598;  King  v.  Gallagher, 
93  N.  Y.,  438;  Ward  v.  Flood,  48  Calif.,  36;  Coryet  v.  Carrier, 
48  Ind.,  327;  Claybrook  v.  Owensboro,  16  Fed.  Reporter,  297. 


264  FEDERAL   USURPATION 

immigration  of  laborers,  police,  and  public  security, 
either  in  force  or  which  may  be  hereafter  enacted  in 
either  of  the  two  countries."  The  word  "  police  "  when 
used  in  connection  with  the  word  "powers"  is  an  apt 
phrase,  well  defined  in  law  as  covering  all  of  the  powers 
reserved  to  the  states  by  the  Constitution.  In  the  con- 
nection in  which  this  word  is  used,  this  would  probably 
be  a  reasonable  construction  of  the  word,  and  it  may 
be  that  the  action  of  the  Board  of  Education  of  the  City 
of  San  Francisco  was  within  the  reservation  of  rights 
provided  by  the  treaty.^ 

It  is  certain,  however,  that  the  founders  of  our  Re- 
public did  not  contemplate  for  a  moment  the  acquisition, 
through  the  war  power  by  treaty,  of  extensive  countries 
in  Asia  peopled  by  millions  of  people,  and  their  rule  by 
Congress,  not  pursuant  to  the  Constitution,  but  as  sub- 
ject people.  Gouverneur  Morris,  to  his  great  discredit, 
writing  to  his  friend,  Henry  Livingston,  at  the  time  of 
the  purchase  of  Louisiana,  discloses  the  fact  that  in 
wording  Article  4,  Section  3,  subdivision  2,  giving 
Congress  the  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States,  he  intended 
to  use  language  which  would  allow  the  United 
States  to  acquire  such  territory  and  rule  such  people 
as  subject  people.  "  But,"  he  says,  "  candor  obliges  me 
to  add  my  belief  that  had  it  been  more  pointedly  ex- 
pressed a  strong  opposition  would  have  been  made." 
He  apparently  understood  the  views  of  the  other  mem- 
bers of  the  Convention,  and  he  knew  if  such  a  purpose 
>  The  Japanese  Immigrant  Case,  189  U.  S.,  86,  97,  of  opinion. 


TREATY   POWER   AND    STATE    RIGHTS         265 

was  suspected  that  the  provision  would  be  rejected,  so 
he  resorted  to  a  subterfuge  to  inject  into  the  Constitu- 
tion a  clause  which  the  United  States  Supreme  Court  in 
our  day  has  construed  as  enabling  us  to  rule  tens  of 
millions  of  human  beings  as  subject  people. 

Speaking  of  the  war  power  John  Quincy  Adams,  in 
the  House  of  Representatives  in  1836,  well  said:  "This 
power  is  tremendous.  It  is  strictly  constitutional,  but 
it  breaks  down  every  barrier  so  anxiously  erected  for 
the  protection  of  liberty  and  of  life."  We  protected 
slavery  in  our  Constitution,  nourished  it  for  over  seventy 
years,  and  destroyed  it  only  by  a  terrible  war  which 
brought  in  its  train  evils  that  still  threaten  the  very  life 
of  our  Republic.  We  are  sowing  seed  of  the  same  kind 
in  the  acquisition  of  colonial  territory,  and  in  the  rule  of 
millions  of  people  according  to  the  principles  of  Rus- 
sian and  Asiatic  despotism.  The  treaty  power  is  a  power 
which  can  be  exercised  with  such  dangerous  results,  that 
well  might  it  be  guarded  most  jealously  by  the  American 
people  against  the  ambitions  of  men  who  would  make 
of  our  people  a  world  power,  even  at  the  expense  of 
destroying  the  spirit  if  not  the  letter  of  the  Constitution. 


VIII 
THE    INTERSTATE    COMMERCE   CLAUSE 


"The  difference  between  liberty  and  slavery  may  turn  upon  a 
little  thing,  but  it  is  not  a  little  difference." 

Anon. 


"An  irreducible  minimum  of  compulsion  is  the  very  essence 
of  good  government." 

Anon. 


"If  the  day  should  ever  arrive  (which  God  forbid!)  when  the 
people  of  the  different  parts  of  our  country  shall  allow  their  local 
affairs  to  be  administered  by  prefects  sent  from  Washington  and 
when  the  self-govemment  of  the  States  shall  have  been  so  far 
lost  as  that  of  the  departments  of  France,  or  even  so  closely 
limited  as  that  of  the  counties  of  England — on  that  day  the 
political  career  of  the  American  people  will  have  been  robbed 
of  its  most  interesting  and  valuable  features,  and  the  usefulness 
of  this  nation  will  be  lamentably  impaired." 

John  Fiske. 


CHAPTER   VIII 

THE    INTERSTATE    COMMERCE   CLAUSE 

It  is  not  my  purpose  to  attempt  to  vindicate  the 
rights  of  the  states  as  against  the  national  government, 
nor  to  vindicate  the  rights  of  the  national  government 
as  against  the  states.  There  is  no  danger  from  the  de- 
velopment of  the  commerce  clause,  if  that  development  is 
within  the  lines  of  the  constitutional  grant.  The  exer- 
cise of  Federal  powers  beyond  this  grant  is  always  dan- 
gerous because  such  exercise  is  undefined  and  therefore 
unlimited.  The  exercise  of  Federal  power  within  this 
grant  is  not  only  permissible,  but  it  is  commendable  for 
the  national  government  to  stand  upon  its  rights  and  en- 
force the  powers  given  it.  For  the  same  reason  it  is 
not  only  permissible  for  the  state  to  insist  that  its  rights 
shall  not  be  infringed,  but  it  is  commendable  for  the  state 
so  to  do.  The  extension,  in  recent  days,  of  the  exercise 
of  powers  claimed  to  belong  to  the  national  government 
has  resulted  largely  from  the  existence  of  evils  by  reason 
of  the  abuses  of  trusts  and  railways. 

Those  who  have  urged  the  extension  of  national 
powers  over  these  abuses  have  uttered  hardly  anything 
worthy  of  a  logical  discussion  of  the  question  as  to 
whether  Congress  had  power  under  the  Interstate  Com- 
merce Act  to  pass  the  recent  enactments.     They  have 

269 


270  FEDERAL    USURPATION 

Started  with  the  assumption  that  abuses  existed,  that  the 
states  could  not  correct  them,  and  that  therefore  the 
national  government  ought  to  correct  them  whether  it 
possessed  the  power  or  not.  President  Roosevelt,  in  his 
Massachusetts  speech  a  few  months  ago,  said :  "  State 
rights  should  be  preserved  when  they  mean  the  people's 
rights  but  not  when  they  mean  the  people's  wrongs ;  not, 
for  instance,  when  they  are  invoked  to  prevent  the  aboli- 
tion of  child  labor,  or  to  break  the  force  of  laws  which 
prohibit  the  importation  of  contract  labor  to  this  coun- 
try ;  in  short,  not  when  they  stand  for  wrong  or  op- 
pression of  any  kind  or  for  national  weaknesses  or 
impotence  at  home  or  abroad.  ,  .  .  The  states  have 
shown  that  they  have  not  the  ability  to  curb  the  power 
of  syndicated  wealth,  and,  therefore,  in  the  interests  of 
the  people,  it  must  be  done  by  national  action." 

State  rights,  we  submit,  should  be  preserved  whether 
they  mean  the  people's  rights  or  not.  National  rights 
should  be  preserved  whether  they  mean  the  people's 
rights  or  not,  because  it  is  the  written  law.  State  rights 
should  be  preserved  whether  they  have  shown  their 
ability  to  curb  the  power  of  syndicated  wealth  or  not, 
because  they  are  secured  by  the  Constitution  of  the 
United  States,  and  the  national  government  and  Con- 
gress and  the  President  are  directed  by  that  instrument 
"  not  to  deny  or  disparage  "  those  rights.  The  United 
States  Supreme  Court  has  declared,  again  and  again, 
"  that  the  maintenance  of  the  state  governments  is  as 
much  within  the  design  and  care  of  the  Constitution  as 
the  preservation  of  the  Union  and  the  maintenance  of 
the  national  government.     The  Constitution  in  all  its 


THE    INTERSTATE   COMMERCE    CLAUSE        271 

provisions  looks  to  an  indestructible  Union  composed 
of  indestructible  states."  ^  The  President  has  taken  an 
oath  "  to  preserve,  protect,  and  defend  the  Constitution 
of  the  United  States,"  and  he  is  under  as  sacred  an 
obligation  to  protect  the  reserved  rights  of  the  states 
as  he  is  to  vindicate  the  rights  of  the  national  govern- 
ment. 

Before  the  national  government  was  formed  the 
states  existed.  It  could  not  have  come  into  existence 
but  for  the  delegation  of  powers  to  it  from  the  state 
governments,  and  it  cannot  exist  without  the  existence 
of  the  states  exercising  all  the  vigor  of  their  reserved 
rights.  "  I  believe,"  said  Senator  Edmunds,  "  that  the 
safety  of  the  Republic  as  a  nation,  one  people,  one  hope, 
one  destiny,  depends  more  largely  upon  the  preserva- 
tion of  what  are  called  the  rights  of  the  states  than 
upon  any  one  thing."  ^  I  am  contending  not  for  state 
rights,  as  the  reader  has  seen  in  the  chapter  on  The 
Treaty  Power  and  State  Rights,  but  I  am  contending, 
with  all  conviction,  that  of  all  the  men  in  this  nation 
it  most  ill  becomes  the  President  of  the  United  States 
to  say  "  that  state  rights  should  be  preserved  when  they 
mean  the  people's  rights,"  when  he  is  under  a  sworn 
obligation  to  preserve  them  because  the  Constitution 
demands  that  they  should  be  preserved.  Of  all  men  the 
President,  his  advisers,  and  the  officers  of  government 
are  under  the  most  solemn  obligation  to  obey  the  Con- 
stitution.    They  are  its  sworn  guardians,  and  for  them 

»  Texas  v.  White,  7  Wall.,  725. 

2  Speech  in  the  Senate,  March  27,  1890,  Cong.  Rec,  vol.  xxi, 
p.  2727. 


272  FEDERAL   USURPATION 

of  all  men  to  renounce  that  obligation  argues  recreancy 
of  duty  and  presents  an  evil  example  to  all  the  people 
of  the  land. 

The  construction  of  the  fundamental  law  on  which 
the  liberties  of  the  people  rest  should  never  be  made  on 
grounds  of  supposed  necessity  or  convenience.  It  is 
just  such  statements  as  we  have  quoted  on  the  part  of 
the  President  which  have  led  the  people  to  overlook 
and  forgive  usurpations  of  power,  thinking  that  those 
usurpations  are  necessary  for  the  public  welfare.  It  is 
well  to  observe  at  the  very  start  of  the  discussion  that 
the  states  are  not  dependent  for  their  rights  to  inter- 
course upon  the  Federal  Constitution,  but,  in  the  lan- 
guage of  Chief  Justice  Marshall,  commerce  "  derives  its 
source  from  those  laws  whose  authority  is  acknowl- 
edged by  civilized  man  throughout  the  world."  ^  The 
states  had  this  privilege  unimpaired  before  the  making 
of  the  Constitution,  and  they  possess  it  to-day  except 
so  far  as  they  have  delegated  it  to  the  national  gov- 
ernment. 

The  Constitution  "  speaks  not  only  in  the  same 
words,  but  with  the  same  meaning  and  intent  with 
which  it  spoke  when  it  came  from  the  hands  of  its  fram- 
ers,  and  was  voted  on  and  adopted  by  the  people  of  the 
United  States.  Any  other  rule  of  construction  would 
abrogate  the  judicial  character  of  this  court,  and  make 
it  the  mere  reflex  of  the  popular  opinion  or  passion  of 
the  day."  *     Now  if  the  Constitution  speaks  to-day  with 

>  9  Wheaton,  211. 

*  S.  Car.  V.  U.  S.,  199  U.  S.,  437  of  opinion  by  Justice  Brewer 
quoting  from  Died  Scott  v.  Sanford. 


THE    INTERSTATE   COMMERCE   CLAUSE        273 

the  meaning  and  intent  of  its  makers,  there  is  no  way 
more  effective  in  ascertaining  that  intent  and  meaning 
than  to  turn  to  the  history  of  the  time  when  it  was 
framed  to  learn  the  conditions  then  existing,  and  the 
mischief  which  it  sought  to  correct.^  The  Constitution 
probably  would  not  have  come  into  existence,  for  many 
years  at  least,  had  it  not  been  for  the  abuse  by  states 
of  their  right  to  control  the  importation  of  goods  from 
foreign  markets,  and  their  abuse  of  the  right  to  impose 
duties  and  imposts  upon  the  importation  of  goods  from 
other  states  of  the  Confederation. 

Congress,  before  the  treaty  of  peace  with  Great 
Britain  and  again  after  the  making  of  that  treaty,  had 
sought  the  power  from  the  states  to  impose  duties  upon 
foreign  imports  and  to  control  interstate  commerce. 
The  right  of  the  states  to  impose  duties  upon  foreign 
commerce  was  of  great  value  to  some  of  them.  Rhode 
Island  had  one  of  the  best  harbors  of  that  day  at  New- 
port, and  by  imposing  duties  upon  imported  goods 
which  she  sold  to  Massachusetts,  New  Hampshire,  and 
Connecticut  her  people  were  able  to  meet  the  expenses 
of  the  state  government.  The  great  harbor  of  New 
York,  midway  between  Connecticut  and  New  Jersey, 
enabled  her  to  lay  duties  on  foreign  importations,  from 
which  she  secured  each  year  from  £60,000  to  £80,000. 
As  a  portion  of  these  imports  were  taken  by  Connecti- 
cut and  New  Jersey,  they  were  obliged  in  this  way  to 
support  the  government  of  New  York.  But  this  was 
not  all.     She  compelled  every  sloop  which  came  down 

•  Rhode  Islands.  Mass.,  12  Peters,  723  ;e:*:  parte 'Williams,  114 
U.  S.,  422;  Maxwell  v.  Dow,  176  U.  S.,  602. 
19 


274  FEDERAL    USURPATION 

from  Hell  Gate,  and  every  market  boat  from  New  Jer- 
sey, to  pay  an  entrance  fee  and  obtain  clearance  from 
her  customhouse,  and  the  people  of  those  states  could 
not  get  a  load  of  wood  or  a  dozen  eggs  into  New  York 
without  paying  duties  on  them.  New  Jersey  retaliated 
by  laying  a  tax  of  $i,8oo  per  year  on  the  Hghthouse 
property  off  Sandy  Hook,  and  the  people  of  Connecti- 
cut, after  submitting  for  some  time,  finally  voted  to  sus- 
pend commercial  intercourse  with  New  York. 

Pennsylvania  imposed  duties  upon  exports  from 
New  Jersey  and  Maryland.  Virginia,  by  reason  of  her 
duties  on  both  foreign  and  domestic  imports,  secured  a 
considerable  part  of  the  revenues  necessary  for  the  pay- 
ment of  the  cost  of  her  government.  The  port  of 
Charleston  afforded  an  opportunity  to  the  people  of 
South  Carolina  to  exact  tribute  from  Georgia  and 
North  Carolina.  As  a  result  of  all  these  duties  upon 
imports  from  foreign  countries,  and  imports  from  adjoin- 
ing states,  animosities  had  arisen  between  the  states, 
and  the  need  that  the  national  government  should  have 
power  to  stop  these  obstructions  to  commerce  was  the 
very  cause  of  the  meeting  at  Annapolis  and  of  the  Con- 
stitutional Convention. 

We  have  shown  the  circumstances  leading  to  the 
framing  of  the  Constitution,  and  the  only  apparent 
causes,  existing  at  that  time,  for  delegating  to  the 
national  government  the  power  to  regulate  commerce 
with  foreign  nations  and  among  the  several  states. 
Now  the  question  naturally  arises  was  it  the  intent,  in 
view  of  those  causes,  to  give  to  the  national  government 
any  greater  power  than  by  regulation  to  prevent  such 


THE    INTERSTATE    COMMERCE    CLAUSE        275 

obstructions  from  being  imposed  by  the  states  upon 
interstate  commerce.  In  regard  to  foreign  commerce, 
the  general  government  stands  in  the  place  of  every 
state  and  represents  it  for  every  national  purpose,  yet 
when  the  states  surrendered  the  right  to  control  inter- 
state commerce,  having  in  view  the  abuses  which  had 
grown  up,  it  was  undoubtedly  their  intent  to  confer  only 
the  power  to  make  commerce  free  between  the  states. 

In  the  Lottery  Case,  Chief  Justice  Fuller  says :  "  It 
is  argued  that  the  power  to  regulate  commerce  among 
the  several  states  is  the  same  as  the  power  to  regulate 
commerce  with  foreign  nations  and  with  the  Indian 
tribes.  But  is  its  scope  the  same?  As  in  effect  before 
observed  the  power  to  regulate  commerce  with  foreign 
nations  and  the  power  to  regulate  interstate  commerce 
are  to  be  taken  diverso  intuitu,  for  the  latter  was  in- 
tended to  secure  equality  and  freedom  in  commercial 
intercourse  as  between  the  states,  not  to  permit  the 
creation  of  impediments  to  such  intercourse;  while  the 
former  clothed  Congress  with  that  power  over  interna- 
tional commerce,  pertaining  to  a  sovereign  nation  in  its 
intercourse  with  foreign  nations,  and  subject,  generally 
speaking,  to  no  implied  or  reserved  power  in  the  states."  ^ 
This  was  the  opinion  declared  by  the  writers  in  The 
Federalist.  It  was  the  desire  for  freedom  of  commerce 
among  the  states  which  inspired  this  provision  as  to  inter- 
state commerce  in  the  Constitution,  and  all  the  early  cases 
so  indicate. 

Mr.  Justice  Field,  in  a  case  ^  decided  before  the  at- 

»  Lottery  Case,  188  U.  S.,  373,  374. 
*  Sherlock  v.  Ailing,  93  U.  S.,  99. 


276  FEDERAL    USURPATION 

tempt  to  extend  the  meaning  of  the  word  "  regulate  "  had 
been  undertaken,  said :  "  On  examination  of  the  cases  in 
which  they  were  rendered,  it  will  be  found  that  the  legis- 
lation, adjudged  to  be  invalid,  imposed  a  tax  upon  some 
instrument  or  subject  of  commerce;  or  exacted  a  license 
fee  from  parties  engaged  in  commercial  pursuits ;  or  cre- 
ated an  impediment  to  the  free  navigation  of  some  public 
water;  or  prescribed  conditions,  in  accordance  with 
which  commerce  in  particular  articles  or  between  particu- 
lar places  was  required  to  be  conducted.  In  all  these 
cases  the  legislation  condemned  operated  directly  upon 
commerce,  either  by  way  of  tax  upon  its  business,  license 
in  its  pursuit  in  particular  channels,  or  conditions  for  car- 
rying it  on.  Thus,  in  the  Passenger  Cases,  the  law  in 
New  York  and  Massachusetts  exacted  a  tax  from  the 
captains  of  vessels  bringing  passengers  from  foreign  ports 
for  every  passenger  landed.  In  Pennsylvania  against 
Wheeling  Bridge,  the  statute  of  Virginia  authorized  the 
erection  of  a  bridge,  which  was  held  to  obstruct  the  free 
navigation  of  the  river  Ohio.  In  the  case  of  Sinnott 
against  Davenport,  the  statute  of  Alabama  required  the 
owner  of  a  steamer  navigating  the  waters  of  a  state  to 
file,  before  the  boat  left  the  port  of  Mobile,  in  the  office 
of  the  Probate  Judge  of  Mobile  County,  a  statement  in 
writing,  setting  forth  the  name  of  the  vessel  and  of  the 
owner  or  owners,  and  his  or  their  place  of  residence  and 
interest  in  the  vessel,  and  prescribed  penalties  for  neglect- 
ing the  requirement.  It  thus  imposed  conditions  for  car- 
rying on  the  coasting  trade  in  the  waters  of  the  state  in 
addition  to  those  prescribed  by  Congress.  And  in  all  the 
other  cases  where  legislation  of  a  state  has  been  held  to 


THE    INTERSTATE   COMMERCE   CLAUSE        277 

be  null  and  void,  for  interfering  with  the  commercial 
power  of  Congress,  as  in  Brown  against  Maryland,  State 
Tonnage  Tax  Cases,  and  Weldon  against  Missouri,  the 
legislation  created,  in  the  way  of  a  tax,  license,  or  condi- 
tion, a  direct  burden  upon  commerce,  or  in  some  way 
directly  interfered  with  its  freedom,"  In  fact  it  will  be 
found  that,  within  the  conception  of  the  fathers,  the  con- 
trol which  they  gave  over  interstate  commerce  was  in- 
tended to  cover  only  coastwise  shipping  from  the  port 
of  one  state  to  the  port  of  another  state.  Mr.  Justice 
Bradley,  in  a  case,^  said :  "  No  doubt  commerce  by  water 
was  primarily  in  the  minds  of  those  who  adopted  the 
Constitution,  although  both  its  language  and  spirit  em- 
brace commerce  by  land  and  water  as  well." 

But  there  is  an  abundance  of  evidence  found  in  the 
acts  of  the  Constitutional  Convention,  and  in  the  con- 
struction of  the  Constitution  by  the  early  Presidents,  to 
show  that  it  was  not  the  intent  of  the  framers  of  the  Con- 
stitution, under  the  power  to  regulate  interstate  com- 
merce, to  clothe  Congress  with  the  power  to  prohibit  com- 
merce, or  to  own  and  operate  canals  and  post  roads.  On 
September  14,  1787,  a  motion  was  made  by  Franklin  in 
the  Constitutional  Convention  that  Congress  be  given 
power  "  to  provide  for  cutting  canals,"  and  the  motion 
was  defeated.  Edmund  Randolph,  who  presented  to  the 
Constitutional  Convention  the  Virginia  plan,  while  Attor- 
ney-General under  the  administration  of  Washington, 
gave  his  opinion  to  Washington,  February  12,  1791,  on 
the  extent  of  the  power  in  Congress  to  regulate  com- 
merce, saying  that  its  extent  was  "  little  more  than  to 
>  The  B.  &  O.  Railroad  Co.  v.  Md.,  21  Wall.,  456. 


278  FEDERAL    USURPATION 

establish  the  forms  of  commercial  intercourse  between  the 
states,  and  to  keep  the  prohibitions  which  the  Constitu- 
tion imposed  upon  that  intercourse  undiminished  in  their 
operation ;  that  is,  to  prevent  taxes  on  imports  or  exports, 
preference  to  one  port  over  another  by  any  regulation  of 
commerce  or  revenue,  and  duties  upon  the  entering  or 
clearing  of  the  vessels  of  one  state  in  the  ports  of  an- 
other." ^  Gallatin,  in  his  report  on  internal  improve- 
ments submitted  April  6,  1808,  said:  "It  is  evident  that 
the  United  States  cannot  under  the  Constitution  open  any 
road  or  canal  without  the  consent  of  the  state  through 
which  said  road  or  canal  must  pass." 

When  Madison  was  President,  Congress  passed  a 
bill  to  construct  national  roads  and  canals,  improve 
water  courses,  and  make  internal  improvements,  but 
Madison  vetoed  the  bill.  At  a  later  date,  when  it  was 
sought  to  set  apart  and  pledge  as  a  permanent  fund  for 
internal  improvements  the  bonus  of  the  national  bank, 
and  the  share  of  the  United  States  in  its  dividends  for 
the  purpose  of  building  roads,  Madison  vetoed  the  bill, 
saying:  "The  power  to  regulate  commerce  among  the 
several  states  cannot  include  a  power  to  construct  roads 
and  canals,  and  to  improve  the  navigation  of  water 
courses,  in  order  to  facilitate,  promote,  and  secure  such 
a  commerce,  without  a  latitude  of  construction  depart- 
ing from  the  ordinary  import  of  the  terms,  strengthened 
by  the  known  inconveniences  which  doubtless  led  to  the 
grant  of  this  remedial  power  to  Congress."  And  he 
declared  "  that  it  was  a  dangerous  assertion  of  national 
power  .  .  .  seeing  that  such  a  power  is  not  expressly 
•  Prentice,  Fed.  Power  over  Carriers  and  Corporations,  p.  102. 


THE    INTERSTATE   COMMERCE   CLAUSE        279 

given  in  the  Constitution,  and  believing  that  it  cannot 
be  deduced  from  any  part  of  it  without  an  inadmissible 
latitude  of  construction."  * 

Monroe  vetoed  an  act  granting  money  for  the  pres- 
ervation and  repair  of  the  Cumberland  Road  in  May, 
1822,  on  the  ground  that  the  government  had  no  au- 
thority to  devote  money  for  such  purposes.^  Jackson 
vetoed  a  bill  authorizing  the  subscription  of  stocks  in 
the  Maysville-Washington-Paris  and  Lexington  Turn- 
pike Company.^  In  the  Civil  War  the  United  States 
Government  granted  Federal  aid  in  the  construction  of 
the  Central  Pacific  Railway,  but  this  was  done  under 
the  war  power  at  a  time  when  usurpations  of  power 
were  common,  and  the  road  was  needed  to  move  troops 
and  to  control  Indian  outbreaks.  The  track  was  laid 
over  government  lands,  and  the  language  of  the  act  ex- 
pressed the  necessity  to  "  secure  the  safe  and  speedy 
transportation  of  the  mails,  troops,  munitions  of  war 
and  public  stores  of  the  United  States."  In  view  of  all 
these  facts,  can  there  be  any  doubt  as  to  the  lack  of 
power  in  Congress  to  incorporate  railways  and  build 
post  roads? 

But  the  times  have  changed  and  the  customs  have 
changed.  To-day  government  goes  roaming  at  will 
upon  a  boundless  sea  without  chart  or  compass,  seeking 
power  wherever  it  can  find  it,  with  little  reference  to  the 
limitations  of  the  Constitution.  Senator  Beveridge  pro- 
poses a  bill  forbidding  the  transport,  or  acceptance  for 

>  Elliot's  Deb.,  vol.  iv,  pp.  468-470. 

2  Elliot's  Deb.,  vol.-  iv,  p.  525. 

3  Elliot's  Deb.,  vol.  iv,  pp.  525-527. 


28o  FEDERAL    USURPATION 

transport,  of  the  products  of  any  factory  or  mine  in  which 
children  under  fourteen  years  of  age  are  employed  or 
permitted  to  work.  The  President  proposes  a  national 
license  law  giving  him  the  right  to  grant  a  national 
license  in  his  discretion  to  such  corporations  as  he  thinks 
are  good  enough  to  engage  in  interstate  commerce. 
The  Department  of  Commerce  and  Labor  is  created  to 
investigate  the  organization,  conduct,  and  management 
of  any  corporation  or  joint  stock  company  engaged  in 
commerce  among  the  several  states,  to  examine  their 
books,  and  to  make  recommendations  to  Congress  for 
legislation.  A  bill  providing  for  the  Federal  registra- 
tion of  automobiles,  and  to  establish  a  uniform  system 
throughout  the  entire  country  as  regards  the  require- 
ments demanded  of  their  owners,  is  before  Congress. 
An  interstate  commerce  board  is  created  to  fix  the  rates 
to  be  charged  on  nearly  220,000  miles  of  railway. 
Under  the  guise  of  controlling  interstate  commerce,  the 
police  power  of  the  states  as  to  the  control  of  food,* 
drugs,  lotteries,  importation  of  teas,  and  many  other 
matters  which  heretofore  have  been  entirely  within  the 
control  of  the  states,  is  taken  over  by  the  national  gov- 
ernment. 

In  short,  the  national  government,  with  few  dele- 
gated powers,  is  going  back  to  the  old  world  views  of 
the  functions  of  government,  and,  through  the  interstate 
commerce  act,  is  establishing  a  Federal  police  power 
which  follows  the  footsteps  of  every  citizen  by  licenses 
and  restraining  laws  into  every  avenue  of  life,  and  prac- 
tically supplants  the  police  powers  reserved  to  the  states. 
•  Grossman  v.  Lurman,  192  U.  S.,  189. 


THE    INTERSTATE    COMMERCE    CLAUSE        281 

If  the  United  States  Supreme  Court  sustains  all  these 
powers,  the  national  government  will  become  omnipo- 
tent. An  ambitious  President,  through  his  right  to 
execute  the  laws,  can  perpetuate  his  power  in  spite  of 
the  people.  But  the  President  seeks  powers  still  greater 
than  these.  He  asks  Congress  to  confer  upon  the  Inter- 
state Commerce  Commission  the  right  to  discriminate 
between  good  and  bad  trusts;  to  allow  certain  railways 
to  form  combinations;  and  to  punish  those  which  it  de- 
sires, and  to  exempt  those  which  it  thinks  it  wise  to 
refrain  from  punishing. 

Such  powers  as  the  President  desires  were  never 
conferred  upon  the  head  of  a  constitutional  government 
in  all  the  history  of  mankind.  In  his  message  to  Con- 
gress he  says :  "  The  actual  working  of  our  laws  has 
shown  that  the  effort  to  prohibit  all  combination,  good 
or  bad,  is  noxious  where  it  is  not  ineffective.  Combina- 
tion of  capital  like  combination  of  labor  is  a  necessary 
element  of  our  present  industrial  system.  It  is  not  pos- 
sible completely  to  prevent  it;  and  if  it  were  possible, 
such  complete  prevention  would  do  damage  to  the  body 
politic.  What  we  need  is  not  vainly  to  try  to  prevent 
all  combination,  but  to  secure  such  rigorous  and  ade- 
quate control  and  supervision  of  the  combinations  as  to 
prevent  their  injuring  the  public,  or  existing  in  such 
form  as  inevitably  to  threaten  injury — for  the  mere  fact 
that  a  combination  has  secured  practically  complete  con- 
trol of  a  necessary  of  life  would  under  any  circumstances 
show  that  such  combination  was  to  be  presumed  to  be 
adverse  to  the  public  interest.  It  is  unfortunate  that  our 
present   laws    should   forbid   all   combinations,    instead 


282  FEDERAL    USURPATION 

of  sharply  discriminating  between  those  combinations 
which  do  good  and  those  combinations  which  do  evil. 
.  .  .  No  more  scathing  condemnation  could  be  visited 
upon  a  law  than  is  contained  in  the  words  of  the  Inter- 
state Commerce  Commission  when,  in  commenting 
upon  the  fact  that  the  numerous  joint  traffic  associations 
do  technically  violate  the  law,  they  say :  '  The  decision 
of  the  United  States  Supreme  Court  in  the  Trans- 
Missouri  Case  and  the  Joint  Traffic  Association  Case 
has  produced  no  practical  effect  upon  the  railway  opera- 
tions of  the  country.  Such  associations,  in  fact,  exist 
now  as  they  did  before  these  decisions,  and  with  the 
same  general  effect.  In  justice  to  all  parties  we  ought 
probably  to  add  that  it  is  difficult  to  see  how  our  inter- 
state railways  could  be  operated  with  due  regard  to  the 
interest  of  the  shipper  and  the  railway  without  con- 
certed action  of  the  kind  afforded  through  these  associa- 
tions.' This  means  that  the  law,  as  construed  by  the 
Supreme  Court,  is  such  that  the  business  of  the  coun- 
try cannot  be  conducted  without  breaking  it.  I  recom- 
mend that  you  give  careful  and  early  consideration  to 
this  subject;  and  if  you  find  the  opinion  of  the  Interstate 
Commerce  Commission  justified,  that  you  amend  the 
law  so  as  to  obviate  the  evil  disclosed." 

Now  what  is  the  inference  from  this  statement  ?  The 
message  expresses  the  opinion  that  it  should  be  per- 
mitted to  railroads  to  make  pooling  agrcemctits,  provid- 
ing these  agreements  were  sanctioned  by  the  Interstate 
Commerce  Commission.  The  President  renewed  this 
suggestion  in  his  Indianapolis  speech,  saying :  "  The  law 
should  be  amended  so  that  railroads  may  be  permitted 


THE    INTERSTATE   COMMERCE   CLAUSE         283 

and  encouraged  to  make  traffic  agreements  in  the  in- 
terests of  the  general  pubHc  as  well  as  of  the  corpora- 
tions making  them."  Was  any  such  proposition  ever 
heard  from  the  ruler  of  a  constitutional  government? 
Will  the  people  quietly  allow  the  government  to  take 
possession  of  such  a  boundless  field  of  power  as  the  right 
to  discriminate  between  good  and  bad  combinations? 
Such  a  power  was  never  exercised  in  any  but  an  auto- 
cratic government.  It  would  be  unsafe  to  vest  such 
vast  power  in  five  men,  however  honest  they  might 
be.  Allow  a  board  of  interstate  commerce  to  discrim- 
inate in  this  manner,  and  you  actually  put  every  rail- 
way and  all  their  wealth  at  the  mercy  of  these  men's 
discretion,  and  you  give  to  government  such  a  terrific 
power  as  men  have  never  exercised  with  moderation  and 
justice. 

The  men  upon  the  Interstate  Commerce  Commission 
are  undoubtedly  good  and  honest  men.  They  would  in- 
tend to  exercise  this  unlimited  power  justly,  but  good 
intentions  have  never  restrained  a  government  that  is 
otherwise  unrestrained.  Even  though  such  power  was 
now  exercised  for  the  public  benefit,  there  would  surely 
come  a  day  when  it  would  be  wielded  unjustly.  The 
liberties  of  the  people  can  never  be  protected  if  they  in- 
trust such  vast  and  indefinite  powers  to  any  board. 
Years  ago  when  the  early  railways  were  being  built  in 
Hungary  and  Austria,  great  corruption  prevailed.  Mr. 
Lowell,  in  his  admirable  work  on  "  Governments  in  Con- 
tinental Europe,"  tells  the  story  of  the  great  Hungarian 
patriot,  Francis  Deak.  "  Deak  once  remarked  in  Par- 
liament that  as  a  boy  he  had  a  strong  fancy  for  eating 


284  FEDERAL    USURPATION 

eels,  until  he  discovered  the  foul  kind  of  place  in  which 
they  lived,  when  his  feelings  turned  to  disgust.  In  like 
manner,  he  said,  his  enthusias.Ti  for  railroads  was 
checked  when  he  learned  the  methods  by  which  con- 
cessions for  building  them  were  engineered  through 
the  Parliament.  The  honest  old  statesman  never  at- 
tended the  debates  on  railroad  bills  thereafter;  and  if 
he  chanced  to  enter  the  hall  unawares  when  such  a 
measure  was  under  discussion,  some  of  the  members 
would  cry,  '  Eels !  Eels ! '  and  he  instantly  slipped  out 
again."  ^ 

Let  us  take  up  one  by  one  a  few  of  the  acts  passed 
and  others  proposed  under  the  interstate  commerce  provi- 
sion of  the  Constitution.  The  act  of  Congress  of  June 
II,  1906,  is  entitled,  An  act  relating  to  the  liability  of 
common  carriers  in  the  District  of  Columbia  and  Terri- 
tories and  common  carriers  engaged  in  commerce  be- 
tween the  States  and  between  the  States  and  foreign 
nations,  to  their  employees.  This  act  provides :  "  That 
every  common  carrier  engaged  in  trade  or  commerce  in 
the  District  of  Columbia,  or  in  any  Territory  of  the 
United  States,  or  between  the  several  States,  or  between 
any  Territory  and  another  or  between  any  territory  or 
territories  and  any  state  or  states,  or  the  District  of  Co- 
lumbia, or  with  foreign  nations  or  between  the  District 
of  Columbia  and  any  state  or  states  or  foreign  nations, 
shall  be  liable  to  any  of  its  employees,  or,  in  the  case 
of  his  death  to  the  personal  representative  for  the  benefit 
of  his  widow  and  children,  if  any ;  if  none,  then  for  his 
parents ;  if  none,  then  for  his  next  of  kin  dependent 
»  Lowell,  vol.  ii,  p.  142. 


THE    INTERSTATE   COMMERCE   CLAUSE        285 

upon  him,  for  all  damages  which  may  result  from  the 
negligence  of  any  of  its  officers,  agents,  or  employees, 
or  by  reason  of  any  defect,  or  insufficiency  due  to  its  neg- 
ligence in  its  cars,  engines,  appliances,  machinery,  track, 
roadbed,  ways,  or  works."  It  then  provides  in  Section 
2  that  if  the  employee  may  have  been  guilty  of  con- 
tributory negligence,  it  shall  not  bar  a  recovery  where 
his  contributory  negligence  was  slight,  and  that  of  the 
employer  was  gross  in  comparison,  but  the  damages  shall 
be  diminished  by  the  jury  in  proportion  to  the  amount 
of  negligence  attributable  to  such  employee.  The  action 
can  be  brought  in  the  United  States  District  or  Circuit 
Court.  It  is  to  be  observed  that  this  act  applies  to  all 
the  employees  of  such  common  carriers,  including  those 
who  render  no  service  in  the  transportation  of  inter- 
state commerce,  as,  for  instance,  engineers  of  local 
trains,  section  hands,  mechanics  in  car  and  machine 
shops,  clerks  in  offices,  and  coal  heavers  for  stationary 
engines.  It  embraces  all  kinds  of  injuries,  and  proposes 
to  abolish  the  fellow-servant  doctrine  in  states  where 
it  is  recognized.  This  act  has  been  declared  uncon- 
stitutional by  two  United  States  District  Court  Judges, 
and  has  been  held  constitutional  by  a  Circuit  Court 
Judge.  In  one  of  the  cases  decided  by  the  district  court, 
an  appeal  was  taken  to  the  United  States  Supreme  Court 
and  argued  in  the  early  part  of  the  year  1907.  The 
attorney-general  of  the  United  States,  at  the  request  of 
the  President,  intervened  in  behalf  of  the  plaintiff,  a 
private  party,  and  the  government,  through  him,  was 
heard  in  the  Supreme  Court  of  the  United  States,  a  prec- 
edent for  which  action  can  hardly  be  found  in  our  ju- 


286  FEDERAL    USURPATION 

dicial  history.     The  Court  has  not  yet  handed  down  a 
decision  upon  the  appeal.^ 

The  law  of  the  state  where  an  accident,  because  of 
negligence,  occurs  has  always  governed  the  cause  of 
action  for  negligence  between  master  and  servant.-  The 
internal  commerce  of  a  state  is  just  as  much  under  its 
control  as  foreign  and  interstate  commerce  is  under  the 
control  of  the  national  government.  The  ordinary  lia- 
bilities and  duties  of  the  citizens  of  a  state  are  not 
affected  in  the  slightest  by  the  fact  that  they  are  per- 
sons engaged  in  foreign  or  interstate  commerce.  Again 
and  again  has  it  been  held  that  "  A  carrier  exercising 
his  calling  within  a  particular  state,  although  engaged 
in  the  business  of  interstate  commerce,  is  amenable,  ac- 
cording to  the  law  of  the  state,  for  acts  of  nonfeasance 
and  misfeasance  committed  within  its  limits." '  If  he 
fail  to  deliver  goods  to  the  proper  consignee,  at  the 
proper  time  and  place,  he  is  liable  in  an  action  for  dam- 
ages under  the  laws  of  the  state  in  its  courts ;  or  if,  by 
negligence  in  transportation,  he  inflicts  an  injury  on  the 
person  of  a  passenger  brought  from  another  state,  a 
right  of  action  for  the  consequent  damage  is  given  by  the 
local  laws.  It  has  been  held  again  and  again  that  rules 
prescribed  by  a  state  for  the  construction,  management, 
and  operation  of  railroads  within  its  territory  are  strict- 
ly within  the  limits  of  local  law,  and  are  not  per  se  regu- 
lations of  commerce.  Rules  requiring  certain  efficiency 
in  engineers,  firemen,  train  hands,  and  telegraph  operators, 

"  On  Jan.  6,  1908,  this  act  was  declared  unconstitutional. 
*  Thompson,  Commentaries  on  Negligence,  Sect.  3868,  3869 
•Smith  V.  State  of  Alabama,  124  U.  S.,  465,  477,  482, 


THE    INTERSTATE   COMMERCE   CLAUSE        287 

prescribed  by  the  state,  are  legal  notwithstanding  such 
employees  are  employed  in  interstate  commerce.^ 

But  in  this  act,  the  employee,  whether  an  engineer  of 
a  local  train,  a  section  hand,  a  mechanic  in  the  car  and 
machine  shops,  a  clerk  in  the  office,  a  coal  heaver  for 
a  stationary  engine,  or  any  other  employee  of  the  rail- 
road company  who  performs  his  entire  labor  within  the 
state,  is  declared  to  be  entitled  to  recover  in  the  United 
States  courts  because  of  the  right  of  Congress  to  regu- 
late interstate  commerce.  His  employment  alone  by  a 
corporation  engaged  in  interstate  commerce,  in  the  con- 
templation of  the  law,  is  sufficient  to  establish  jurisdic- 
tion and  to  give  judicial  power  to  award  him  damages 
in  the  Federal  courts. 

If  Congress  can  confer  a  cause  of  action  upon  an 
employee  of  a  common  carrier  engaged  in  interstate 
commerce  for  the  negligence  of  his  employer,  it  can 
equally  prescribe  that  his  day's  work  shall  consist  of 
four  hours.  It  can  regulate  every  relation  between  that 
common  carrier  and  its  employee.  By  and  by,  in  the 
language  of  Congressman  McCall,  it  will  come  "  that 
the  most  common  thing  will  be  the  necessity  of  an  affi- 
davit for  a  citizen  to  move  his  goods  from  state  to 
state."  By  and  by,  the  very  intention  of  shipping  the 
products  of  the  farm,  or  the  shop,  or  of  any  productive 
industry  by  an  interstate  carrier,  will  give  the  regula- 
tion of  such  farm,  or  manufactory,  or  industry  to  Con- 

>  Chicago,  Milwaukee  &  St.  Paul  Ry.  Co.  v.  Solan,  169  U.  S., 
133;  Missouri,  Kansas  &  Texas  Ry.  Co.  v.  Haber,  169  U.  S.,  613; 
Atchison,  Topeka  &  Santa  Fe  Ry.  Co.  v.  Matthews,  174  U.  S., 
96. 


288  FEDERAL   USURPATION 

gress.  In  the  language  of  Mr.  Justice  Lamar  in  Kid 
against  Pearson/  "  The  result  would  be  th^t  Congress 
would  be  invested,  to  the  exclusion  of  the  states,  with  the 
power  to  regulate,  not  only  manufacturers,  but  also  ag- 
riculture, horticulture,  stock  raising,  domestic  fisheries, 
mining,  in  short,  every  branch  of  human  industry.  For 
is  there  one  of  them  that  does  not  contemplate,  more 
or  less  clearly,  an  interstate  or  foreign  market?  Does 
not  the  wheat  grower  of  the  Northwest  and  the  cotton 
grower  of  the  South  plant  and  harvest  his  crop  with  an 
eye  on  the  prices  at  Liverpool,  New  York  and  Chicago? 
The  power  being  vested  in  Congress  and  denied  to  the 
states,  it  would  follow,  as  an  inevitable  result,  that  the 
duty  would  devolve  on  Congress  to  regelate  all  of  these 
delicate,  multiform  and  vital  interests — interests  which 
in  their  nature  are  and  must  be  local  in  all  the  details 
of  their  successful  management.  ...  It  was  said  by 
Chief  Justice  Marshall  that  it  is  a  matter  of  public  his- 
tory that  the  object  of  vesting  in  Congress  the  power  to 
regulate  commerce  with  foreign  nations  and  among  the 
several  states  was  to  insure  uniformity  of  regulation 
against  conflicting  and  discriminating  state  legislation." 
Under  this  employers'  liability  law,  Congress  has  at- 
tempted to  take  from  the  cognizance  of  state  courts  their 
jurisdiction  over  a  class  of  cases  which  they  have  ex- 
ercised during  the  entire  history  of  the  country,  upon 
the  single  ground  that  the  man  injured  in  the  state  is 
the  employee  of  an  interstate  common  carrier.  All  the 
transactions  of  men  with  common  carriers  throoigh  ex- 
press companies,  accidents  upon  trains,  and  the  hundred 
'  128  U.  S.,  21. 


THE    INTERSTATE   COMMERCE   CLAUSE        289 

Other  kinds  of  cases  which  might  arise  out  of  such  re- 
lationships, by  and  by  will  be  removed  by  a  national 
statute  from  the  state  courts  to  the  United  States  courts, 
simply  because  one  of  the  parties  is  a  common  carrier 
of  interstate  commerce  and  the  other  party  is  dealing 
with  him.  In  1903  Mr.  Justice  Brewer  said :  "  The  Con- 
stitution is  supposed  to  possess  an  elasticity  which  would 
make  the  manufacturers  of  india  rubber  choke  with 
envy."  Indeed,  if  the  constitutionality  of  this  act  is  sus- 
tained, all  the  relations  which  men  have  with  common 
carriers  of  interstate  commerce  will  be  subject  to  the 
control  of  Congress.^ 

Senator  Albert  J.  Beveridge,  of  Indiana,  whose  sym- 
pathy with  the  poor  and  the  afflicted  will  not  be  doubted 
by  anyone  who  has  read  his  two  volumes  entitled  The 
Russian  Advance,  in  which  he  sets  forth  all  the  beauties 
of  the  Russian  autocracy,  introduced  in  the  Fifty-ninth 
Congress  a  bill  for  the  regulation  of  child  labor,  pro- 
hibiting any  railway,  engaged  in  interstate  commerce, 
from  carrying  as  freight  any  article  upon  which  children 
less  than  fourteen  years  of  age  had  performed  labor. 
Robert  Hunter  tells  us  that  not  less  than  80,000 
children,  most  of  them  little  girls,  are  employed  at 
present  in  the  textile  mills  of  the  country.  He  tells  us 
that  in  the  South  there  are  now  six  times  as  many  chil- 
dren at  work  as  there  were  twenty  years  ago.  Surely 
the  attainment  of  no  more  worthy  object  can  be  con- 
ceived of  than  the  protection  of  such  children  in  our 
factories. 

The  question,  however,  is,  shall  the  United  States 

«  Field  V.  Barber  Asphalt  Co.,  194  U.  S.,  618. 
20 


290  FEDERAL   USURPATION 

government  attempt  to  remedy  this  evil  through  the  in- 
terstate commerce  clause,  without  the  slightest  authority 
for  its  action?  This  bill  was  rejected  by  Congress.  It 
has  the  support,  however,  of  the  President.  Mr.  Bryan, 
in  his  debate  with  Senator  Beveridge,^  says :  "  I  have 
g^ven  to  Senator  Beveridge's  bill  (referring  to  the  pro- 
posed child's  labor  bill)  whatever  support  I  could.  It 
is  right  in  principle,  it  is  necessary,  and  it  does  not  in- 
terfere with  the  reserved  rights  of  the  states."  So  be- 
tween Senator  Beveridge  and  the  President  and  Mr. 
Bryan,  this  bill  will  undoubtedly  appear  again  before 
Congress.  The  Judiciary  Committee  of  the  House  of 
Representatives  said  of  this  bill:  "It  is  not  extreme  or 
ridiculous  to  say  that  it  would  be  just  as  logical  and  cor- 
rect to  argue  that  Congress  can  regulate  the  age,  color, 
sex,  manner  of  dress,  height,  and  size  of  employees,  and 
fix  their  hours,  as  to  contend  that  Congress  can  exercise 
jurisdiction  over  the  subject  of  woman  and  child  labor. 
.  .  .  The  agitation  of  such  legislation  produces  an  uneasy 
feeling  among  the  people,  and  confuses  the  average  mind 
as  to  the  power  of  Congress  and  the  power  of  the  state." 
If  Congress  can  regulate  child  labor  in  the  factories, 
under  the  interstate  commerce  clause,  because  the  owner 
of  the  factory  contemplates  selling  his  goods  in  another 
state,  with  just  as  much  consistency  it  can  regulate  child 
labor  upon  the  farm,  in  the  wheat  field,  or  in  the  cotton 
field,  upon  the  ground  that  the  farmer  and  the  cotton 
grower  intend  to  ship  their  crops  to  Liverpool.  If  it  can 
regulate  the  age  of  children  in  factories  because  the 
product  of  those  factories  is  carried  by  a  common  car- 
>  The  Reader,  April,  1907,  p.  465. 


THE    INTERSTATE   COMMERCE   CLAUSE        291 

rier  to  another  state,  why  can  it  not  regulate  the  ages  of 
the  farmer's  children  working  in  the  wheat  fields?  A 
portion  of  all  the  products  of  the  farm  and  the  factory 
is  carried  beyond  the  confines  of  the  state  by  common 
carriers,  and  if  this  fact  is  to  control,  there  is  nothing 
to  prevent  the  regulation  of  the  whole  industries  of  the 
country  by  Congress,  because,  forsooth,  the  products  of 
those  pursuits  are  to  become  the  subjects  of  interstate 
commerce. 

There  is  not  an  evil  in  all  the  vast  field  of  production 
which  Congress  cannot  control  if  this  proposed  law  is 
permissible.  Such  a  pretension  would  result  in  the  su- 
pervision of  the  means  of  production  of  all  the  subjects 
of  interstate  and  foreign  commerce  which  may  be  borne 
upon  railways  or  canals,  from  point  to  point  within 
the  several  states,  toward  their  ultimate  destination  in 
another  state  or  in  a  foreign  country.  Such  a  pretension 
would  put  under  the  control  of  Congress  every  man, 
not  only  engaged  in  interstate  commerce,  but  working 
upon  the  railways  and  the  canals  and  the  boats  and 
ships  which  are  used  on  the  highways  of  commerce.  Of 
course,  the  absurdity  of  such  legislation  is  apparent  to 
any  intelligent  man,  but  because  it  appeals  to  millions 
of  philanthropic  people,  to  millions  who  do  not  under- 
stand the  powers  of  the  national  government,  Congress  is 
besought  to  pass  such  unconstitutional  laws. 

On  April  2,  1907,  Judge  Edward  H.  Farrar,  of  New 
Orleans,  communicated  to  the  President  a  means  of  ac- 
complishing all  the  results  sought  by  the  kind  of  legis- 
lation which  we  have  been  describing,  through  the  power 
given  to  the  national  government  in  Paragraph  7,  Sec- 


292  FEDERAL   USURPATION 

tion  8,  Article  i,  of  the  Constitution,  which  grants  to 
Congress  power  to  estabHsh  post  offices  and  post  roads. 
In  this  letter  he  assumes  that  because  Congress  has  been 
given  this  power  it  can  create  a  corporation  to  take  over 
the  whole  railway  system  of  the  country,  if  necessary, 
and  then  lease  those  railways  to  the  companies  from 
which  they  have  been  taken.  In  this  way  Congress 
will  be  the  owner  of  the  property,  using  it  for  a  public 
purpose,  and  can  exercise  the  control  necessary  to  ac- 
complish all  the  reforms  sought  without  an  amendment 
to  the  Constitution. 

A  resolution  empowering  Congress  to  create  a  cor- 
poration was  rejected  in  the  Convention  which  framed 
the  Constitution.  The  Pacific  Railroads  were  chartered 
as  territorial  corporations,  deriving  their  authority  from 
the  states  within  which  they  operated  by  state  permission. 
Throughout  the  long  history  of  the  Cumberland  Post 
Road  the  practice  was  uniform  of  securing  the  consent 
of  the  state  to  build  the  road.  Mr.  Prentice,  in  his  ad- 
mirable work  on  Federal  Powers  over  Carriers  and 
Corporations,^  cites  an  interesting  instance  of  this  in 
the  Act  of  Congress  of  March  26,  1804,  enacting:  Sec- 
tion 4,  "  That  whenever  it  shall  be  made  to  appear  to 
the  satisfaction  of  the  Postmaster-General  that  any  road 
established  by  this  or  any  former  act,  as  a  post  road,  is 
obstructed  by  fences,  gates,  or  bars,  other  .than  those 
lawfully  used  on  turnpike  roads,  to  collect  their  toll,  and 
not  kept  in  good  repair  with  proper  bridges  and  ferries, 
where  the  same  may  be  necessary,  it  shall  be  the  duty 

*  Prentice,  Fed.  Powers  over  Carriers  and  Corporations,  p. 
150. 


THE    INTERSTATE   COMMERCE   CLAUSE 


293 


of  the  Postmaster-General  to  report  the  same  to  Con- 
gress, with  such  information  as  can  be  obtained,  to  en- 
able Congress  to  establish  some  other  road,  instead  of  it, 
in  the  same  main  direction."  So  we  see  that  the  Con- 
stitution, as  construed  at  that  time,  did  not  even  confer 
upon  the  Federal  government  authority  to  remove  ob- 
structions either  from  roads  or  streams  through  a  state.^ 
How  greatly  have  our  modern  rulers  magnified  this 
power. 

But  let  us  see  what  construction  one  of  the  Justices 
of  the  United  States  Supreme  Court  has  put  upon  the 
words  "  to  establish  post  offices  and  post  roads."  In  the 
State  of  Pennsylvania  against  the  Wheeling  &  Belmont 
Bridge  Company,^  Mr.  Justice  McLean  of  the  United 
States  Supreme  Court  says :  "  The  same  power  that 
would  enable  Congress  to  build  a  bridge  over  a  navigable 
stream  would  authorize  it  to  construct  a  railroad  or  turn- 
pike road  through  the  states  of  the  Union,  as  it  might 
deem  expedient.  This  power  may  have  been  asserted 
in  regard  to  post  roads,  but  the  settled  opinion  now 
seems  to  be  that  to  establish  post  roads  within  the  mean- 
ing of  the  Constitution  is  to  designate  them.  In  this 
sense  Congress  may  establish  post  roads  extending  over 
bridges,  but  it  can  neither  build  them  nor  exercise  any 
control  over  them,  except  the  mere  use  for  the  convey- 
ance of  the  mail  on  paying  toll."  One  who  follows  the 
history  of  the  Cumberland  Road,  from  1806  until  Madi- 
son and  Monroe  had  finally  destroyed  the  road  because 
of  the  lack  of  power  to  expend  the  public  moneys  for 

»  Fort  Leavenworth  R.R.  Co.  v.  Lowe,  114  U.  S.,  525. 
*  18  Howard,  442,  of  dissenting  opinion. 


294  FEDER.\L    USURPATION 

such  a  purpose,  can  hardly  doubt  that  it  was  the  opinion 
in  those  days  of  both  Congress  and  the  President  that  the 
power  did  not  exist  in  the  national  government  to  own 
and  operate  post  roads  through  the  several  states.  That 
is  clearly  seen  by  the  fact  that  the  consent  of  the  states 
was  procured,  and  that,  when  obstructed  by  a  state,  the 
government  sought  another  road. 

We  are  all  well  acquainted  with  what  is  known  as  the 
police  powers  of  the  state.  The  states  originally  pos- 
sessed entire  control  of  laws  affecting  public  morals, 
public  health,  and  all  laws  of  a  similar  nature  of  so 
many  descriptions  as  to  be  hardly  capable  of  enumera- 
tion. It  delegated  none  of  these  powers  to  the  United 
States  government.  To  put  that  fact  beyond  question 
the  Ninth  and  Tenth  Amendments  to  the  Constitution, 
expressly  reserving  such  powers,  were  passed.  They 
provided  that  "  The  enumeration  in  the  Constitution  of 
certain  rights  shall  not  be  construed  to  deny  or  dispar- 
age others  retained  by  the  people " ;  and  that  "  The 
powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively,  or  to  the  people."  All  police 
powers  are  vested  in  the  state  as  securely  as  the  in- 
genuity of  man  can  devise  language  to  vest  a  power  in 
a  state;  or,  to  state  the  proposition  more  clearly,  those 
powers  were  always  in  the  states  and  were  never  dele- 
gated to  the  national  government,  and,  with  a  distrust 
and  jealousy  of  power  which  we  do  not  seem  to  feel,  the 
states  were  determined  to  put  it  beyond  question  that 
such  powers  were  not  delegated,  and  therefore  insisted 
upon  the  adoption  of  these  two  amendments. 


THE    INTERSTATE   COMMERCE    CLAUSE        295 

By  an  act  of  Congress  passed  in  1895  it  was  made 
a  punishable  offense  for  any  person  to  bring  into  the 
United  States  from  abroad  for  the  purpose  of  disposing 
of  the  same,  or  to  deposit  in,  or  carry  by  the  mails  of 
the  United  States,  or  by  any  express  company,  any 
paper,  certificate,  or  instrument  purporting  to  be  a 
ticket,  share,  or  interest  in  and  depending  upon  the 
event  of  a  lottery,  and  the  crime  was  made  punishable 
by  imprisonment  for  not  more  than  two  years,  or  by  a 
fine  of  not  more  than  $2,000.  In  Dallas  County,  Texas, 
one  Champion  delivered  to  the  Wells-Fargo  Express 
Company  a  certain  box  or  package  containing  lottery 
tickets  to  be  carried  to  Fresno,  Cal.  He  was  in- 
dicted for  this  offense,  and  the  question  arose  whether 
a  lottery  ticket  was  a  subject  of  commerce,  and  whether 
its  delivery  to  an  express  company,  to  be  taken  from  the 
state  of  Texas  to  the  state  of  California,  was  an  offense 
under  this  act.  The  United  States  Supreme  Court,  Mr. 
Justice  Harlan  delivering  the  opinion,  held  that  a  lot- 
tery ticket  was  a  subject  of  traflfic  among  those  who 
chose  to  sell  or  buy  it,  and  that,  therefore,  the  carriage 
of  such  a  ticket  by  independent  carriers  from  one  state 
to  another  was  interstate  commerce;  that,  under  its 
power  to  regulate  commerce  among  the  several  states, 
Congress  had  plenary  authority  over  such  commerce 
and  might  prohibit  the  carriage  of  such  tickets  from 
state  to  state;  and  that  this  legislation  was  not  incon- 
sistent with  any  limitation  or  restriction  imposed  upon 
the  powers  granted  to  Congress.*  Four  Justices  of  that 
court  concurred  with  this  decision  and  four  dissented. 
•  Lottery  Case,  188  U.  S.,  363,  364,  of  opinion. 


296  FEDERAL   USURPATION 

Congress,  before  this  decision,  had  enacted  a  law  for- 
bidding the  transport  of  intoxicating  liquors  from  a  place 
without  a  state  which  prohibited  the  sale  of  liquors  to 
a  place  within  that  state.  It  has  since  passed  what  is 
known  as  the  Pure  Food  Law,  regulating  interstate 
commerce  in  impure  foods  and  impure  drugs,  and 
probably  it  will  continue  to  enact  similar  laws.  The 
probable  result  of  this  decision  is  that  eventually  the 
national  government  will  assume  control  of  all  such 
police  powers  of  the  states,  and  will  attempt,  under  the 
commerce  clause,  to  legislate  upon  many  subjects  which 
heretofore  have  been  controlled  only  by  state  legislation. 
It  therefore  becomes  a  serious  question  whether  such 
legislation  is  constitutional. 

The  object  of  this  kind  of  legislation  is  clearly  to 
control  the  morals  and  the  health  of  the  people  of  the 
diflferent  states.  May  Congress  use  the  power  granted 
for  one  purpose  for  the  accomplishment  of  an  entirely 
different  purpose?  Because  it  has  been  given  the  right 
to  regulate  commerce,  that  is,  to  prescribe  the  rules  by 
which  commerce  is  to  be  governed,  may  it  use  that  right 
to  destroy  the  exclusive  powers  which  belonged  to  the 
states  before  the  Constitution,  which  were  not  delegated 
to  the  national  government,  and  which  amendments  to 
the  Constitution  expressly  reserved  to  the  states?  Does 
not  the  national  government  disparage  such  powers  of 
the  states  when  it  attempts  indirectly  to  take  the  place 
of  the  states  in  enforcing  them?  "Should  Congress," 
said  Chief  Justice  Marshall,  "  under  the  pretext  of  exer- 
cising its  powers  pass  laws  for  the  accomplishment  of 
objects  not  intrusted  to  the  government,  it  would  be- 


THE    INTERSTATE   COMMERCE   CLAUSE        297 

come  the  painful  duty  of  this  tribunal,  should  a  case 
requiring  such  a  decision  come  before  it,  to  say  that  such 
an  act  was  not  the  law  of  the  land."  ^ 

The  words  of  the  prevailing  opinion  in  the  Lottery 
Case  show  clearly  that  the  decision  rested  upon  the  fact 
that  it  was  pernicious  in  nature  and  opposed  to  good 
morals,  yet  it  attempted  to  control  that  lottery  through 
the  power  over  commerce  delegated  to  Congress  for  the 
sole  purpose  of  keeping  commerce  unobstructed  be- 
tween the  states.  Mr.  Chief  Justice  Fuller,  with  three 
of  the  Justices  concurring  in  his  dissenting  opinion, 
said:  "That  the  purpose  of  Congress  in  this  enactment 
is  the  suppression  of  lotteries  cannot  be  denied.  That 
purpose  is  avowed  in  the  title  of  the  act,  and  it  is  its 
natural  and  reasonable  effect,  and  by  that  its  validity 
must  be  tested."  These  dissenting  judges  held  that  the 
carriage  of  a  lottery  ticket  from  one  state  to  another  by 
an  express  company  was  not  commercial  intercourse; 
that  the  ticket  simply  purported  to  create  contractual 
relations,  and  to  furnish  the  means  of  creating  a  contract 
right,  and  came  within  the  holding  of  numerous  cases 
that  insurance  policies  were  not  subjects  of  commerce. 

Mr.  Justice  Fuller  very  pertinently  inquires,  "  If  a 
state  should  create  a  corporation  to  engage  in  the  busi- 
ness of  lotteries,  could  it  enter  another  state  which  pro- 
hibited lotteries  on  the  ground  that  lottery  tickets  were 
the  subjects  of  commerce?  On  the  other  hand,  could 
Congress  compel  a  state  to  admit  lottery  matter  within 
it  contrary  to  its  own  laws  ?  ...  It  will  not  do  to  say — 
a  suggestion  which  has  heretofore  been  made  in  this 
>  McCuUoch  V.  Maryland,  4  Wheaton,  423. 


298  FEDERAL    USURPATION 

case — that  state  laws  have  been  found  to  be  ineffective 
for  the  suppression  of  lotteries,  and  therefore  Congress 
should  interfere.  The  scope  of  the  commerce  clause  of 
the  Constitution  cannot  be  enlarged  because  of  present 
views  of  public  interests."  The  dissenting  opinion  con- 
cludes very  properly  that  the  object  of  the  power 
granted  to  Congress  to  regulate  interstate  commerce 
was  "  to  secure  equality  and  freedom  in  commercial  in- 
tercourse as  between  the  states  and  not  to  permit  the 
creation  of  impediments  to  such  intercourse,"  and  that 
this  attempt  to  regulate  morals  and  take  over  the  police 
powers  of  the  state  through  an  act  of  Congress  was  un- 
constitutional. "  I  regard  this  decision,"  says  the  Chief 
Justice,  "  as  inconsistent  with  the  views  of  the  framers 
of  the  Constitution,  and  of  Marshall,  its  great  ex- 
pounder. Our  form  of  government  may  remain  not- 
withstanding legislation  or  decision,  but,  as  long  ago 
observed,  it  is  with  governments,  as  with  religions,  the 
form  may  survive  the  substance  of  the  faith." 

This  lottery  case  is  the  most  important,  as  bearing 
upon  the  relations  between  our  state  and  national  gov- 
ernments and  the  powers  vested  in  each,  which  ever  has 
been  decided  by  the  United  States  Supreme  Court.  If 
it  is  to  remain  the  law,  the  idea  of  the  founders  that  the 
power  vested  in  Congress  was  simply  to  protect  com- 
merce from  acts  of  interference  by  state  governments 
has  been  wholly  destroyed.  The  right  of  the  national 
government  to  pass  a  pure  food  law,  or  a  prohibitive  tax 
on  oleomargarine,  an  act  to  prevent  the  importation  of 
teas  below  a  certain  quality  or  flavor,^  and  proposed 
»  Buttfield  V.  Stranahan,  192  U.  S.,  470. 


THE    INTERSTATE   COMMERCE   CLAUSE        299 

laws  for  the  regulation  of  insurance  and  hours  of  labor 
in  various  employments,  are  all  dependent  upon  the 
soundness  of  this  decision.  Can  it  be  that  the  power 
given  Congress  to  regulate  commerce  between  the  states 
was  intended  to  permit  it  to  enter  upon  the  reformation 
of  society  ?  ^  That  is  precisely  what  was  established  in 
the  Lottery  Case.  It  is  plainly  stated  in  the  law,  the 
constitutionality  of  which  was  tested  in  the  Lottery 
Case,  that  it  was  enacted  to  suppress  lotteries.  Mr.  Jus- 
tice Harlan,  in  his  opinion  sustaining  the  law,  said: 
"  May  not  Congress,  for  the  protection  of  the  people  of 
all  the  states  and  under  the  power  to  regulate  interstate 
commerce,  devise  such  means  as  will  drive  the  lottery 
traffic  out  of  commerce  among  the  states?"  The  ma- 
jority of  the  court  held  that  it  could. 

A  statute  of  Congress  attempting  to  control  the 
manufacture  of  illuminating  fluids  within  a  state,  by 
making  it  punishable  to  sell  such  fluids  inflammable  at 
less  than  a  certain  specific  temperature,  was  held,  on  an 
appeal  from  the  conviction  of  one  found  guilty  of  vio- 
lating the  law  at  Detroit,  as  absolutely  void  because  it 
was  an  invasion  of  the  police  powers  of  the  states.^  In 
the  act  referred  to,  creating  a  board  of  tea  exam- 
iners to  report  upon  the  quality  or  flavor  of  teas,  and 
giving  them  power  to  reject  all  imported  teas  below  a 
certain  quality  or  flavor,  we  have  the  principle  estab- 
lished which,  carried  to  its  ultimate  end,  means  that  it 

>  Minnesota  v.  Barber,  136  U.  S.,  313;  New  York  v.  Miles,  11 
Peters,  103;  Passenger  Cases,  7  How.,  283;  Yick  Wo  v.  Hopkins, 
n8  U.  S.,  356. 

«  United  States  v.  Dewitt,  9  Wall.,  41. 


3CX3  FEDERAL   USURPATION 

is  within  the  power  of  Congress,  under  the  interstate 
commerce  clause,  to  prohibit  the  importation  of  any 
commodity  under  the  pretense  of  guarding  the  public 
heahh. 

But  the  Lottery  Case  established  something  still 
more  important.  This  decision  goes  so  far  as  to  pro- 
hibit interstate  commerce  altogether  wherever  Congress 
may  see  fit.  If  it  is  good  law.  Congress  may  impose 
whatever  terms  it  likes  upon  the  privilege  of  carrying 
any  commodity  between  one  state  and  another,  and  if 
the  terms  are  not  complied  with,  may  forbid  it  entirely. 
If  such  legislation  is  constitutional,  Congress  can  ac- 
quire practical  control  over  the  operation  of  all  produc- 
tion and  manufacture,  as  well  as  over  the  distribution  of 
the  products  of  every  industry  in  the  United  States.  Al- 
ready it  has  been  proposed  by  the  President  that  the 
executive  be  given  the  right  to  prohibit  all  producers  who 
do  not  procure  from  the  national  government  a  license 
permitting  them  to  engage  in  interstate  commerce.  At- 
torney-General Knox,  on  October  14,  1902,  at  Pittsburg, 
declared  that  "  Congress  may  deny  to  a  corporation, 
whose  life  it  cannot  reach,  the  privilege  of  engaging  in 
interstate  commerce  except  upon  such  terms  as  Congress 
may  prescribe  to  protect  that  commerce  from  restraint." 

In  the  Lottery  Case  the  counsel  for  the  defendant 
urged  upon  the  court  that  to  uphold  the  constitutionality 
of  the  lottery  act  would  lead  necessarily  to  the  conclu- 
sion that  "  Congress  may  arbitrarily  exclude  from 
commerce  among  the  states  any  article,  commodity,  or 
thing  of  any  kind  or  nature,  or  however  useful  or  valu- 
able, which  it  may  choose,  no  matter  with  what  motive 


THE    INTERSTATE   COMMERCE   CLAUSE        301 

— to  declare  that  it  may  not  be  carried  from  one  state 
to  another."  ^  And  the  court,  instead  of  denying  that 
the  decision  led  to  such  a  result,  answered  the  objec- 
tion as  follows :  "  It  will  be  time  enough  to  consider  the 
constitutionality  of  such  legislation  when  we  must  do  so. 
The  present  case  does  not  require  the  court  to  declare  the 
full  extent  of  the  power  that  Congress  may  exercise  in 
the  regulation  of  commerce  among  the  states."  ^  If  the 
Lottery  Case  has  not  required  the  court  to  declare  "  the 
full  extent  of  the  power "  of  Congress,  what  limit  is 
there  upon  the  power  of  Congress?  What  is  to  hinder 
them  from  taking  over  the  control  of  all  the  industries 
of  the  country  under  the  power  to  regulate  commerce? 

It  is  not  generally  appreciated  by  the  people  that 
when  Congress  enacts  a  so-called  regulation  of  com- 
merce, affecting  the  domestic  affairs  of  a  state,  that  the 
law  enacted  by  Congress  controls  exclusively  the  mat- 
ters of  the  state  w^hich  it  affects.  To  illustrate,  if  the 
National  Employers'  Liability  Act  is  held  to  be  consti- 
tutional, in  at  least  twenty-five  states  in  the  Union,  it 
will  amount  to  a  repeal  of  the  state  laws  as  regards  all 
persons  injured  while  employed  by  railways  engaged  in 
interstate  commerce.  According  to  the  statistics  of  the 
Interstate  Commerce  Commission,  on  June  30,  1904,  there 
were  1,296,122  persons  employed  by  such  railways.  Not 
over  250,000  of  these  could  be  required  to  cross  state  lines 
in  the  performance  of  their  duties.  The  Employers'  Lia- 
bility Act  would  affect  46,037  general  office  clerks,  154,- 
920  station  employees,  46,272  machinists,  53,646  carpen- 

•  188  U.  S.,  362  of  opinion  by  Harlan,  J. 
2  188  U.  S.,  362  of  opinion. 


302  FEDERAL   USURPATION 

ters,  159,474  "  other  shop  men/'  326,653  section  foremen 
and  trackmen,  46,262  switchmen,  and  30.425  telegraph 
operators.  So  that  practically  this  act  would  supplant  the 
state  laws  in  the  case  of  several  hundred  thousand  men. 
The  next  bill  to  be  passed  probably  will  be  an  eight-hour 
bill,  controlling  the  hours  of  labor  of  these  employees, 
and  then  a  telegraphers'  bill,  and  then  an  arbitration  bill. 
Step  by  step,  the  national  government,  at  the  rate  it  has 
been  proceeding  for  the  last  ten  years,  finally  will  super- 
vise all  the  industries  of  this  country  through  the  pretext 
of  regulating  interstate  commerce.  Ought  not  the  people 
to  have  a  clear  understanding  of  the  danger  that  will  re- 
sult from  such  action  on  the  part  of  Congress? 

If  the  commerce  clause  was  construed  as  it  was  the 
intent  of  the  fathers,  to  protect  commerce  from  tariff 
acts  and  other  acts  of  interference  on  the  part  of  the 
states,  great  blessings  would  be  conferred  upon  the  peo- 
ple. Our  national  prosperity  and  wealth  have  come 
more  from  this  provision  of  commerce,  thus  interpreted 
in  the  past,  than  from  any  other  provision  of  the  Consti- 
tution. Charles  Sumner  well  said:  "  If  there  be  any  sin- 
gle fruit  of  our  national  unity,  if  there  be  any  single 
element  of  the  Union,  if  there  be  any  single  triumph 
of  the  Constitution  which  may  be  placed  above  all 
others,  it  is  the  freedom  of  commerce  among  the  states, 
under  which  that  free  trade,  which  is  the  aspiration  of 
philosophers,  is  assured  to  all  citizens  of  the  Union,  as 
they  circulate  through  our  whole  broad  country,  without 
hindrance  from  any  state." 

But  how  has  it  been  used?  Whenever  terrible 
abuses  have  arisen,  like  those  of  the  insurance  companies 


THE    INTERSTATE   COMMERCE   CLAUSE        303 

of  New  York  City,  the  President  has  prescribed  the 
remedy  of  national  control.  He  has  prescribed  this  con- 
trol, although  the  United  States  Supreme  Court,  again 
and  again,  has  declared  that  insurance,  when  carried  on 
by  a  company  in  New  York  with  individuals  in  other 
states,  was  not  commerce,  but  the  mere  entering  into 
a  contract  between  a  corporation  of  one  state  and  a  citi- 
zen of  another  state.^  Would  the  supervision  of  Con- 
gress over  insurance  be  so  much  more  efficient  than 
supervision  by  the  states  as  to  justify  the  change  ?  Con- 
gressman McCall,  on  Lincoln's  Birthday  last,  speaking 
in  New  York  of  the  control  by  Congress  of  insurance, 
through  its  code,  in  the  District  of  Columbia,  said:  "  For 
instance,  under  this  beneficent  code  there  is  an  insur- 
ance company  operating  to-day  which  appropriates  to  its 
treasury  or  for  expenses,  ninety  per  cent  of  all  the  pre- 
miums collected." 

Congress  controls  the  number  of  passengers  which 
each  boat  engaged  in  river  and  coastwise  trade  may 
carry.  It  has  been  given  authority  to  require  these  boats 
to  keep  on  board  certain  life-preserving  and  life-saving 
instruments  of  a  great  variety.  Has  it  performed  its 
duties?  Do  not  the  death  of  thousands  of  our  people 
in  recent  years  tell  the  tale  of  its  incompetence?  Is  the 
ordinary  public  servant  more  honest  because  he  is  in  the 
employ  of  the  national  government  rather  than  in  the 
employ  of  a  state  government?  Is  there  any  justification 
for  the  national  government's  attempts  to  take  over  the 
control  of  the  affairs  of  the  states  on  the  ground  that 

'  Paul  V.  Virginia,  8  Wall.,  168;  Hooper  v.  California,  155  U. 
S.,  648;  N.  Y.  Life  Ins.  Co.  v.  Craven,  178  U.  S.,  389. 


304 


FEDERAL    USURPATION 


its  servants  are  more  faithful  and  honest  than  those  of 
the  states? 

Bismarck,  at  the  height  of  his  power,  was  unable  to 
procure  the  passage  of  a  bill  allowing  a  uniform  admin- 
istration of  the  railroads  of  Germany  and  the  purchase 
by  the  government  of  certain  lines.  ^Ir.  Lowell  says: 
"  Bismarck  had  this  project  very  much  at  heart,  but  the 
dread  of  increasing  the  power  of  the  central  government 
was  so  g^eat  among  the  smaller  states,  that  he  did  not 
even  venture  to  bring  the  matter  before  the  Bundesrath 
and  had  to  content  himself  with  the  purchase  by  Prussia 
of  the  roads  within  her  own  territory."  ^ 

The  President  not  only  consented  that  Mr.  Edgar 
Howard  Farrar  should  give  to  the  press  the  letter  in 
which  the  latter  had  pointed  out  the  way,  through  the 
power  in  Congress,  to  establish  "  post  offices  and  post 
roads,"  for  the  national  government  to  acquire  the  rail- 
way systems  of  the  country',  but  in  his  Memorial  Day 
address  at  Indianapolis  he  approved  the  idea.  We  have 
already  an  interstate  commerce  commission,  which  the 
President  may  appoint  in  vacation  at  will,  and  which 
is  removable  by  the  President  at  his  pleasure,  with  the 
power  to  control  the  rates  of  traffic  on  two  hundred  and 
twenty  thousand  miles  of  railway  for  all  the  goods  of 
about  ninety  millions  of  people.  Such  a  gigantic  power 
as  that  never  before  was  placed  in  the  hands  of  five  men. 
A  President,  ambitious  to  continue  in  his  office  by  the 
wrongful  use  of  this  power,  could  procure  a  nomina- 
tion in  spite  of  the  people.     And  still  the  President  is 

» Lowell,  Government  and  Parties  in  Cent.  Europe,  vol.  ii, 
p.  197. 


THE    INTERSTATE   COMMERCE   CLAUSE        305 

not  satisfied,  but  apparently  seeks  to  control  more  di- 
rectly the  railways  of  the  country.  At  the  banquet  of 
the  Gridiron  Club  at  Washington  in  1907,  the  news- 
papers represented  the  President  of  1917  as  erasing  the 
chalk  boundaries  between  the  states  and  leaving  the  cen- 
tral government  supreme.  Not  only  will  he  be  able,  if 
such  powers  are  conferred  upon  him,  to  erase  the  lines 
which  separate  the  states,  but  by  reason  of  the  vast  ex- 
ecutive powers  in  his  hands,  he  will  be  able  to  make 
decrees  which  Congress  will  register  as  complacently  as 
do  the  legislators  their  President's  decrees  in  Mexico 
and  many  South  American  Republics  to-day.  Let  the 
people  beware  of  placing  such  vast  powers  in  the  Presi- 
dent's hands.  It  matters  not  how  honest  the  President 
and  those  who  surround  him  are  to-day.  The  time  will 
come  when  such  powers  will  be  used  for  the  destruction 
of  the  people's  liberties. 


21 


IX 

STATE      CENTRALIZATION      THROUGH      COM- 
MISSIONS    AND     COURTS 


"As  to  govemment,  all  discontent  springs  from  unjust  treat- 
ment.    Idiots  talk  of  agitatiors;  there  is  but  one  in  existence, 

and  that  is  injustice." 

Sir  Chas.  James  Napier. 


"Every  function  superadded  to  those  already  exercised  by 
the  government,  causes  its  influence  over  hopes  and  fears  to  be 
more  widely  diflFused,  and  converts,  more  and  more,  the  active 
and  ambitious  part  of  the  pubUc  into  hangers-on  of  the  govem- 
ment, or  of  some  party  which  alms  at  becoming  the  govemment. 
If  the  roads,  the  railwaj's,  the  banks,  the  insurance  offices,  the 
great  joint-stock  companies,  the  universities,  and  the  public 
charities,  were  all  of  them  branches  of  the  govemment;  if,  in 
addition,  the  municipal  corporations  and  local  boards,  with  all 
that  now  devolves  on  them,  became  departments  of  the  central 
administration ;  if  the  emplojrees  of  all  these  different  enterprises 
were  appointed  and  paid  by  the  govemment,  and  looked  to  the 
govemment  for  every  rise  in  life ;  not  all  the  freedom  of  the  press 
and  popular  constitution  of  the  legislature  would  make  this  or 
any  other  country  free  otherwise  than  in  name.  And  the  e\'il 
vrould  be  greater,  the  more  efficiently  and  scientifically  the  ad- 
ministrative machinery  was  constructed — the  more  skillful  the 
arrangements  for  obtaining  tne  best  qualified  hands  and  heads 
with  which  to  work  it." 

John  Stuart  Mill. 


"From  these  principles  arose  that  venerable  institution 
which  none  but  a  free  and  simple  people  could  have  conceived, 
trial  by  peers ;  an  institution  common  in  some  degree  to  other 
nations,  but  which  more  widely  extended,  more  strictly  retained, 
and  better  modified  among  ourselves,  has  become  perhaps  the 
first — certainly  among  the  first,  of  our  securities  against  arbitrary 
govemment." 

Hallam. 


CHAPTER   IX 

STATE   CENTRALIZATION   THROUGH    COMMISSIONS   AND 
COURTS 

Local  self-government  in  the  different  states  is  the 
preparatory  school  in  which  the  citizen  acquires  the  rudi- 
ments of  government,  and  always  has  been  justly  re- 
garded as  of  the  highest  importance  in  maintaining  the 
Republic.  The  people  need  not  look  to  the  constitution 
of  their  state  for  this  right.  They  had  the  right  before 
the  constitution,  which  presupposes  an  organized  society, 
law,  order,  property,  and  personal  freedom.  Usages, 
customs,  maxims,  modes  of  thought,  the  method  of  try- 
ing facts  by  juries,  the  mutual  responsibility  of  neigh- 
borhood interests,  the  sentiments  of  manly  independence 
and  self-control  which  make  good  citizens,  these  are  the 
sources  of  constitutional  government ;  they  precede  con- 
stitutions, and  without  their  existence  a  constitution 
would  be  a  lifeless  skeleton. 

One  great  reason  for  the  subversion  of  so  many  con- 
stitutions in  France  since  the  French  Revolution  is  that 
the  Constituent  Assembly,  for  the  purpose  of  destroying 
local  self-government  among  the  people,  broke  up  the 
ancient  divisions  of  the  country  and  formed  eighty-six 
departments,  thus  destroying  all  the  traditions  of  the 
people  as  to  local  life.  We  are  given  to  attributing  our 
liberty  to  the  securities  of  a  constitution.     No  greater 

309 


3IO  FEDERAL    USURPATION 

mistake  could  be  made.  The  traditions  of  English  lib- 
erty which  the  forefathers  brought  to  this  country,  the 
local  self-government  which  they  established  in  towns 
and  counties,  their  habits,  customs,  and  usages  have  been 
the  source  of  our  liberties.  The  Constitution  is  simply 
the  measure  of  the  rights  delegated  by  the  people  to  their 
governmental  agents,  and  secures  them  practically  no 
rights  which  they  did  not  have  before  its  enactment. 
Jefferson,  speaking  of  the  benefits  of  local  self-govern- 
ment, well  said :  "  These  wards  called  townships  in  New 
England  are  the  vital  principle  of  their  governments,  and 
have  proved  themselves  the  wisest  invention  ever  devised 
by  the  wit  of  man  for  the  perfect  exercise  of  self-gov- 
ernment and  for  its  preservation."  Professor  Lieber 
says :  "  Self-government,  general  as  well  as  local,  is  in- 
dispensable to  our  liberty."  De  Tocqueville  declared : 
"  Those  who  dread  the  license  of  the  mob  and  those 
who  fear  absolute  power  ought  alike  to  desire  the  grad- 
ual development  of  provincial  liberties.  ...  A  cen- 
tralized government  is  fit  only  to  enervate  the  nations  in 
which  it  exists."  ^ 

During  the  last  twenty  or  thirty  years  we  have  been 
busily  at  work,  through  our  legislatures,  in  hastening 
back  to  the  kind  of  government  that  gave  the  guilds 
their  privileges  and  sought  to  dictate  as  to  the  minutest 
details  of  life.  The  state,  as  in  those  days,  has  com- 
menced the  eternal  intermeddling  with  the  affairs  of 
every  locality  through  state  commissions.  It  took  a 
century  or  more  to  get  rid  of  restrictive  legislation  and 
the  state's  habit  of  controlling  all  the  domestic  affairs 
*  Democracy  in  America,  chap,  v,  p.  99. 


STATE    CENTRALIZATION 


3" 


of  man  by  law,  and  now  we  have  commenced  to  return 
to  the  same  conditions  which  required  centuries  of  strug- 
gle to  destroy.  The  growing  absence  of  the  habit  of 
self-government  can  be  seen  in  every  village  and  ham- 
let in  the  land.  The  want  of  confidence  of  the  people 
in  their  ability  to  build  their  roads  and  manage  their 
local  matters  has  been  increasing  under  the  new  regime. 
At  the  rate  we  are  going,  it  will  be  but  a  few  years 
before  state  governments  will  have  taken  upon  them- 
selves all  local  aflfairs. 

We  have  come  in  recent  days  to  establish  a  kind 
of  government  known  as  government  by  commission. 
These  commissioners  are  not  nominated  by  the  people, 
not  elected  by  the  people,  not  subject  to  the  control  of 
the  people,  and  not  even  subject  to  the  control  of  the 
executive,  a  portion  of  whose  duties  they  perform. 
Their  duties  are  prescribed  by  the  legislature,  and  the 
governor  has  really  no  more  control  over  them,  al- 
though their  duties  are  executive  in  nature,  than  he  has 
over  the  action  of  a  head  of  a  distinct  department  of  the 
government  elected  by  the  people. 

Massachusetts  was  the  first  state  to  institute  this 
form  of  government.  In  1837  she  established  a  state 
board  of  education ;  in  1852  a  state  board  of  agricul- 
ture ;  between  that  time  and  1895  thirty-two  other  com- 
missions. The  governor  of  Massachusetts,  in  1885,  ap- 
pointed a  commission  of  three  men  to  take  charge  of 
the  whole  police  administration  of  the  City  of  Boston. 
He  had  no  power  to  remove  these  men  without  the  con- 
sent of  the  Council  of  State.  They  were  not  responsible 
to  the  legislature  nor  to  the  people  of  Boston,  who 


312  FEDERAL    USURPATION 

were  expressly  excluded  from  all  control.  The  power 
of  granting  licenses  for  the  sale  of  liquor  was  also  vested 
in  this  commission,  and  the  fees  therefrom  were  devoted 
to  paying  the  expenses  of  the  police.  In  1894  a  sim- 
ilar commission  was  appointed  over  Fall  River.  In 
1893  was  established  the  state  highway  commission, 
consisting  of  three  members  appointed  by  the  governor 
and  council,  which  took  charge  to  a  considerable  extent 
of  the  highways  of  the  state.* 

In  1 89 1  Governor  Russell,  in  his  address  to  the  leg- 
islature of  Massachusetts,  said :  "  With  much  truth 
Massachusetts  has  been  described  as  a  commission-gov- 
erned state.  Its  great  departments  of  education,  health, 
charities,  prisons,  reform  schools,  almshouses  and  work- 
houses, agriculture,  railroads,  insurance,  fisheries,  har- 
bors and  lands,  savings  banks  and  others  are  governed 
by  independent  boards  practically  beyond  the  control  of 
the  people.  Besides  these  there  are  commissions  on 
gas,  pharmacy,  dentistry,  civil  service,  arbitration,  cattle, 
wrecks,  pilots.  State  aid,  and  others  for  special  and  tem- 
porary purposes.  Almost  without  exception  the  mem- 
bers of  these  boards  are  appointed  by  the  governor,  but 
only  with  the  advice  and  consent  of  nine  other  men. 
Their  tenure  of  office  is  usually  for  a  term  of  several 
years,  often  without  power  of  removal  by  anyone,  some- 
times subject  to  removal  for  cause  or  otherwise  by  the 
governor,  with  the  same  consent.  The  latter  power  in 
effect  necessitates  a  trial  upon  formal  charges,  which 
seldom  would  be  made  or  could  be  proved  except  for 

'  Bradford,  The  Lesson  of  Popular  Government,  vol.  ii,  pp. 
27-31- 


STATE   CENTRALIZATION  313 

flagrant  malfeasance  in  office.  The  subordinate  officials 
are  generally  appointed  by  the  boards.  These  boards 
and  their  work  are  practically  beyond  the  control  of  the 
people,  or  of  anyone  immediately  responsible  to  them, 
except  in  the  limited  power  of  the  governor  occasionally 
to  appoint  a  single  member.  The  people  of  the  state 
might  have  a  most  decided  opinion  about  the  manage- 
ment and  work  of  these  departments,  and  give  emphatic 
expression  to  their  opinion  and  yet  be  unable  to  con- 
trol their  action.  The  system  gives  great  power  with- 
out proper  responsibility,  and  tends  to  remove  the 
people's  government  from  the  people's  control."  In 
Massachusetts,  however,  many  public-spirited  citizens  in 
earlier  days  served  upon  these  boards  without  receiving 
any  pay  for  their  services,  and  the  governor  and  his 
council  have  exercised  rare  good  judgment  in  the  selec- 
tion of  the  members  of  the  different  commissions ;  so 
that  it  may  be  said  that  if  there  is  any  state  in  the  Union 
where  arguments  can  be  found  in  favor  of  such  gov- 
ernment, it  is  in  that  state. 

As  early  as  1857  New  York  established  a  commis- 
sion for  the  regulation  of  the  railroads.  But  the  rail- 
roads, which  even  at  this  early  date  exercised  the  same 
kind  of  influence  over  the  legislature  which  has  been 
growing  since,  determined  to  do  away  with  this  com- 
mission. They  knew  that  the  opposition  would  come 
from  the  leading  commissioner  and  so,  to  induce  him 
to  resign  and  make  no  opposition,  they  paid  him  $25,- 
000.  The  attorney  of  the  Erie  Railroad,  testifying  be- 
fore the  Hepburn  Commission  in  1879,  said:  "I  was 
the  attorney  of  the  Erie  Railroad  at  that  time  "  (refer- 


314  FEDERAL    USURPATION 

ring  to  1857)  ;  "  I  specially  used  to  attend  to  legislation 
that  they  desired  to  affect  or  oppose.  ...  I  remember 
the  appointment  of  that  commissioner.  .  .  .  We  agreed 
that  if  they "  (the  leading  railroad  commissioner) 
"  would  not  oppose  the  repeal  of  the  law  we  would 
pay  $25,000,  and  have  done  with  the  commission ;  it 
was  embarrassing."  ^ 

In  the  same  year  that  the  legislature  created  a  rail- 
road commission  it  also  created  a  metropolitan  police  dis- 
trict, including  the  counties  of  New  York,  Kings,  West- 
chester, and  Richmond  in  a  district  to  be  called  the 
Metropolitan  Police  District  of  the  State  of  New  York, 
and  it  authorized  the  Governor,  by  and  with  the  consent 
and  advice  of  the  Senate,  to  appoint  five  commissioners 
of  police,  three  from  New  York,  one  from  Kings  County, 
and  one  from  Richmond  and  Westchester,  whose  terms 
of  office  were  to  be  three  years.  This  commission  was 
given  entire  control  over  the  police  of  that  district.  The 
constitutionality  of  this  act  was  vigorously  opposed  but 
was  upheld  in  the  Court  of  Appeals.^ 

In  1857  the  state  board  of  charities  was  created  in 
New  York,  and  in  1880  the  state  board  of  health.  State 
commissions  have  greatly  impaired  local  self-government 
along  many  lines.  They  have  taken  over  the  control  of 
the  insane,  of  charitable  institutions,  and  of  reformato- 
ries. Commencing  with  1880,  when  there  were  but  three 
commissions  existing,  forty-one  commissions  came  into 
existence  by  1904.  In  the  Comptroller's  report  of  1904  a 
statement  is  given  showing  that  the  payments  made  from 

'  Lloyd,  Wealth  against  Commonwealth,  pp.  370,  371. 
2  The  People  v.  Simeon  Draper,  15  N.  Y.,  532. 


STATE   CENTRALIZATION  315 

the  state  treasury,  on  account  of  the  salaries  and  other 
expenses  of  the  new  officers  and  commissions  created 
since  1880,  had  amounted  to  $66,238,254.39.^  In  1897 
the  roster  of  state  employees  connected  with  these  com- 
missions occupied  about  130  pages  of  the  report  of  the 
Civil  Service  Commission  and  included  about  5,000  per- 
sons. The  state  expenditures  for  commissions  to-day  are 
probably  five  or  six  times  the  entire  expenditures  of  the 
counties  and  towns. 

The  cause  of  the  great  increase  of  state  expenditures 
in  New  York  is  accounted  for  to  some  extent  by  the  re- 
lations existing  between  state  senators  and  assemblymen 
and  these  commissions.  The  members  of  a  commission 
are  always  interested  in  getting  as  large  appropriations 
for  the  work  of  their  commission  as  possible.  Therefore 
they  resort  to  the  process  of  lobbying  with  members  of 
the  committees  having  charge  of  appropriations.  The 
chairman  of  a  committee  of  the  Senate  or  Assembly  is 
always  a  man  whose  influence  is  to  be  sought  and  who 
must  be  brought  to  their  way  of  thinking.  For  some 
years  past  a  chairman  of  a  committee  of  the  Senate  has 
been  at  the  same  time  the  counsel  in  litigation  for  one  of 
these  commissions  and  in  one  year  has  been  paid  about 
$9,000  as  legal  fees  out  of  the  appropriations  reported 
favorably  by  his  committee  for  this  commission.^ 

In  1906,  according  to  Attorney-General  Jackson,  over 
$300,000  was  paid  out  in  special  fees  to  lawyers,  as  coun- 
sel for  the  various  commissions  and  departments  of  gov- 
ernment, many  of  those  lawyers  being  at  the  same  time 

'  Comptroller's  Report,  1904,  pp.  702-707. 

*  Albany  Letter  to  the  N.  Y.  Evening  Post,  March  4,  1907. 


3i6  FEDERAL   USURPATION 

members  of  the  legislature.  During  the  same  period  the 
whole  expenses  of  the  Attorney-General's  office  were  only 
$131,270.  It  is  estimated  that  during  the  last  ten  years 
$3,000,000,  at  least,  has  been  paid  out  to  special  counsel, 
most  of  whom  were  doing  legal  work  for  these  commis- 
sions, and  many  of  whom  were  either  Senators  or  As- 
semblymen.* 

The  small  state  of  Connecticut,  besides  its  minor 
boards  and  commissions,  some  twenty  in  number,  has  four- 
teen paid  commissions  with  a  total  of  forty-seven  mem- 
bers. They  include  insurance,  railroads,  highways,  banks, 
school  funds,  building  and  loans,  fisheries  and  shellfish, 
labor  and  labor  statistics,  dairies,  cattle,  taxes,  barbers 
and  saloon  licenses.  All  these  commissions  but  two  are 
of  a  political  or  partisan  character.  These  commission- 
ers thronged  the  state  capitol  at  Hartford,  during  the 
last  winter,  engaged  largely  in  lobbying  with  legislators 
to  accomplish  legislation  in  behalf  of  railroads  and  other 
like  corporations.  The  present  Governor  Woodruff  of 
that  state,  in  his  speech  accepting  the  nomination,  pledged 
himself  to  remove  this  kind  of  evil.  In  his  message  to 
the  legislature  he  commented  at  length  upon  the  abuses 
in  the  state  commissions,  and  he  removed  from  office  the 
state  tax  commissioner,  because  of  his  having  been  en- 
gaged as  a  lobbyist  in  the  state  legislature.  Several 
years  ago  the  abuses  of  the  County  Commission,  which 
has  charge  of  the  granting  of  licenses,  became  so  flagrant 
that  a  law  was  passed  allowing  appeals  from  its  decisions 
to  be  taken  to  the  courts.     The  Railroad  Commission  is 

•  Special  Correspondence  to  the  N.  Y.  Evening  Post,  March 
17,  1907. 


STATE   CENTRALIZATION  317 

notoriously  corrupt,  and  most  of  the  commissioners  are 
regarded  as  holding  sinecure  places  as  spoilsmen,  and  as 
engaged  in  caucuses,  conventions^  and  the  lobby,  in  be- 
half of  political  aspirants  and  private  interests.^ 

We  are  apt  to  attribute  bad  government  in  our  coun- 
try to  the  fact  that  a  considerable  proportion  of  the 
voters  are  recent  immigrants  unacquainted  with  our  cus- 
toms and  habits.  In  Connecticut  we  have  in  the  towns 
outside  the  cities  many  descendants  of  the  early  inhabi- 
tants of  that  state.  In  revolutionary  days  Connecticut 
was  the  most  democratic  and  the  best  governed  state  of 
the  thirteen,  but  to-day,  governed,  not  by  the  cities,  which 
are  deprived  of  their  representation  through  a  rotten 
borough  system,  but  by  the  towns,  she  has  about  the  most 
corrupt  government  to  be  found  in  any  state  in  the  Union. 
In  Rhode  Island,  the  history  and  government  of  which 
is  very  similar  to  that  of  Connecticut,  we  find  the  city  of 
Providence,  with  nearly  one  half  of  the  entire  population 
of  the  state,  represented  only  by  a  single  Senator  in  a 
Senate  of  thirty-eight  members.  Twenty  small  towns, 
containing  but  eight  per  cent  of  the  population,  are  able 
to  control  the  legislation  of  the  state  against  ninety-two 
per  cent  of  the  population.  Both  these  states  are  con- 
trolled by  a  representative  system  nearly  as  bad  as  that 
found  in  England  before  the  Reform  Act. 

Similar  conditions  exist  in  New  Hampshire.  A  cor- 
respondent of  the  New  York  Evening  Post,  under  date 
of  February  10,  1897,  after  describing  vividly  local  self- 
government  as  it  existed  many  years  ago  in  that  state, 
said :  "  All  this  has  entirely  either  disappeared  or  is  fast 

.  '  Letter  to  the  N.  Y.  Evening  Post,  March  4,  1907. 


3l8  FEDERAL    USURPATION 

vanishing.  In  New  Hampshire  the  highway  and  school 
districts  have  been  aboHshed ;  state  officials  have  been 
multiplied  and  their  functions  extended.  *  The  legis- 
lature,' says  the  Mirror,  '  regelates  our  outgoing  and  our 
incoming,  tells  us  in  what  pond  we  must  not  catch  pick- 
erel, and  on  whose  land  we  may  hunt  chipmunks ;  it  dic- 
tates what  we  shall  eat  and  what  we  shall  drink.  Now 
the  idea  is  steadily  making  headway  that  the  state  shall 
control  and  support  the  schools  and  build  the  highways.'  " 

South  Carolina,  after  conducting  a  state  dispensary 
for  the  sale  of  liquor  throughout  the  whole  state  for  a 
period  of  thirteen  years,  has  gone  back  to  the  old  system, 
and  local  option  gives  to  every  county  the  choice  between 
prohibition  and  a  dispensary  of  its  own  conducted  by 
local  officials.  The  official  investigation  of  two  years 
ago  showed  great  scandals  connected  with  the  administra- 
tion of  the  dispensary  law,  and  the  whole  scheme  was 
brought  into  discredit. 

Self-government  is  a  matter  of  absolute  right  on  the 
part  of  localities.  The  state  cannot  take  it  away,  because 
the  people,  originally  possessing  the  right,  have  not  given 
the  legislature,  through  their  constitution,  the  power  to 
take  it  away.*  The  people  of  the  counties,  towns,  and 
villages  are  entitled  of  right  to  determine  who  shall  rule 
over  them.  They  cannot  be  deprived  of  this  right  by  the 
legislature  or  by  the  heads  of  departments.  This  right 
is  the  ven.'  basis  of  all  government  in  this  countn.'.  Not- 
withstanding this,  there  is  nothing  which  affects  the  citi- 
zen from  infancy  to  the  grave  which  is  not  subject  to 
regulation  by  these  commissions.  Nothing  is  left  to  the 
>  Rathbone  v.  Worth,  150  N.  Y.,  459. 


STATE   CENTRALIZATION  319 

uncontrolled  will  of  the  individual  citizen.  He  eats, 
he  drinks,  he  lives  in  subordination  to  the  control  of 
a  multitude  of  administrative  officers,  and,  thus  gov- 
erned, he  pities  the  people  of  Prussia  and  Russia  for 
their  subjection  to  the  arbitrary  government  of  a  bu- 
reaucracy. 

I  am  aware  that  much  can  be  said  in  favor  of  com- 
missions to  control  sanitation,  education,  the  adulteration 
of  foods,  the  destruction  of  game  and  fish,  and  especially 
the  preservation  of  the  forests.  Much  indeed  can  be  said 
in  favor  of  factory  inspection,  the  arbitration  of  labor 
disputes,  and  the  examination  of  banks  and  insurance 
companies.  Many  of  the  commissioners  are  men  with 
scientific  knowledge  and  fervent  enthusiasm  for  tjie  ex- 
tension of  public  benefits  through  the  departments  over 
which  they  preside.  Because  a  considerable  proportion 
of  the  population  of  a  state  is  found  in  its  cities,  and 
because  of  the  great  concentration  of  manufacturing  in- 
dustries, the  control  of  many  things,  which  were  left  to 
localities  in  olden  days,  can  be  better  controlled  now  by 
the  state  than  by  the  locality.  In  matters  where  the 
whole  state  is  interested,  arguments  in  favor  of  state 
control  can  be  adduced. 

But  these  commissions  have  been  multiplied  unduly 
so  that  they  interfere  very  largely  with  local  self-govern- 
ment. They  are  exercising  judicial  and  legislative  pow- 
ers which  it  was  never  contemplated  for  a  moment  that 
they  should  exercise.  If  they  come  to  believe  that  ex- 
traordinary powers  belong  to  them,  they  can  prohibit  the 
carrying  on  of  a  business  by  refusing  a  license  to  it.  The 
commissioners  in  no  sense  are  responsible  to  the  peo- 


320  FEDERAL   USURPATION 

pie,  and  are  quite  indifferent  to  public  sentiment.  Even 
if  the  people  of  the  localities  could  not  perform  such  du- 
ties as  well  as  the  commissioners,  still  in  their  perform- 
ance they  would  retain  their  habit  of  controlling  their 
local  affairs,  and  that  is  of  the  greatest  public  importance. 
Long  ago  it  was  said :  "  A  man  can  judge  better  in  rela- 
tion to  his  own  affairs  than  seven  watchmen  on  a  tower." 
And  the  people  of  a  town,  or  a  village,  or  a  small  city, 
are,  as  a  rule,  much  better  judges  of  what  they  need  than 
are  these  commissioners. 

Another  objection  to  the  existence  of  these  commis- 
sions is  that  they  split  up  the  executive  power  of  the  gov- 
ernor, and  that  each  commission  has  a  kind  of  administra- 
tive veto  on  laws  simply  by  not  enforcing  them.  There 
is  no  such  thing  as  securing  an  honest  and  faithful  ad- 
ministration of  the  laws  when  we  have  one  governor  and 
forty  or  fifty  commissions  dividing  the  executive  duties 
between  them.  The  people  of  a  state  can  watch  a  gov- 
ernor, and  they  will  condemn  his  action  if  wrong.  But 
they  cannot  watch  forty  commissions,  and  but  a  few 
people  will  know  anything  about  what  they  are  doing. 
This  means  that  the  commissioners  have  a  perfect  oppor- 
tunity to  carry  on  matters  in  their  own  way.  Government 
by  commission  is  not  responsible  government.  We  pro- 
vide a  governor  to  execute  the  laws  and  administer  the 
affairs  of  the  state,  and  then  permit  forty  or  fifty  commis- 
sions to  divide  the  administration  with  him.  We  hold 
him  responsible  for  their  acts  over  which  he  has  no 
control ;  and  when  he  attempts  to  remove  a  commissioner, 
as  Governor  Hughes  did  in  the  state  of  New  York,  the 
Senate  refuses  to  consent,  and  thus  a  governor  is  ham- 


STATE   CENTRALIZATION  321 

pered  by  the  continuance  in  an  important  office  of  an 
unworthy  public  servant. 

The  truth  is  that  public  interests  would  be  furthered 
by  allowing  the  governor  to  select  all  the  heads  of  de- 
partments in  the  state,  and  then  hold  hira  strictly  account- 
able for  the  whole  administration.  In  both  the  state  and 
our  larger  cities  it  is  impossible  for  the  people  to  keep 
track  of  the  heads  of  departments.  The  one  way  to 
enforce  responsible  government  is  to  leave  to  the  mayor 
of  the  city  and  the  governor  of  the  state  the  control  and 
responsibility  of  all  departments,  by  giving  them  the 
power  both  to  appoint  and  remove  such  officials.  This 
is  a  better  kind  of  centralization  than  that  involved  in 
government  by  commission,  where  the  people  are  unable 
to  know  and  control  conditions. 

There  has  been  no  action  upon  the  part  of  legislatures 
in  recent  days  which  has  tended  more  toward  centraliza- 
tion than  attempts  to  control  the  local  government  of 
cities  for  partisan  purposes.  In  March,  1901,  the  public 
authorities  in  the  cities  of  Scranton,  Pittsburg,  and  Alle- 
gheny were  opposed  to  a  certain  section  of  their  own 
party  of  the  state  republican  machine  in  Pennsylvania. 
To  get  rid  of  the  objectionable  mayors  and  other  officers 
of  these  cities  the  act  of  March  7,  1901,  entitled  an  act 
for  the  government  of  cities  of  the  second  class,  was 
passed  by  the  Pennsylvania  legislature.  It  changed  the 
charters  of  each  of  the  three  cities  of  Pittsburg,  Alle- 
gheny, and  Scranton,  and  put  them  under  special  pro- 
visions, different  from  all  other  cities  of  the  state,  legis- 
lated out  of  office  the  mayor  and  other  city  officers,  and 
placed  the  government  of  these  cities  in  the  hands  of  a 


322  FEDERAL    USURPATION 

high  executive  officer  of  the  commonwealth  residing  at 
Harrisburg,  thus  doing  away  with  local  officers  elected 
by  the  people  whose  terms  of  office  had  not  expired.  And 
the  Supreme  Court  of  Pennsylvania  actually  sustained 
that  kind  of  legislation.* 

In  revolutionary  days  this  great  state  of  Pennsyl- 
vania had  what  was  known  as  a  council  of  censors,  com- 
posed of  two  persons  from  each  city  and  county  in  the 
state.  They  were  elected  for  the  first  time  in  1783  for  a 
period  of  seven  years.  It  was  the  duty  of  this  body  to 
inquire  whether  the  Constitution  had  been  violated, 
whether  the  public  taxes  had  been  justly  levied  and  col- 
lected, and  whether  the  laws  had  been  duly  executed. 
They  had  power  to  summon  witnesses  before  them  and 
to  compel  them  to  produce  papers  and  reports.  They 
had  the  power  to  order  impeachments  and  to  recommend 
the  repeal  of  unconstitutional  laws.  They  could  call  a 
convention  for  revising  the  Constitution,  and  one  of  the 
provisions  which  they  were  instrumental  in  putting  into 
the  Constitution  would  be  a  wholesome  provision  to  limit 
the  supply  of  politicians  in  that  state  to-day.  This  pro- 
vision was  as  follows :  "  As  every  freeman  to  preserve 
his  independence,  if  without  sufficient  estate,  ought  to 
have  some  profession,  calling,  trade  or  farm  whereby  he 
may  honestly  subsist,  there  can  he  no  necessity  for,  or 
use  in  establishing  offices  of  profit,  the  usual  effects  of 
zvhich  are  dependence  and  servility  xinhecoming  freemen 
in  the  possessors  and  expectants,  faction,  contention,  cor- 
ruption, and  disorder  among  the  people.  But  if  any  man 
is  called  into  the  public  service  to  the  prejudice  of  his 
'  Commonwealth  v.  Moir,  199  Pa.,  534. 


STATE   CENTRALIZATION  323 

private  affairs  he  has  a  right  to  a  reasonable  compensa- 
tion, and  whenever  an  office,  through  increase  of  fees 
or  otherwise,  becomes  so  profitable  as  to  occasion  many 
to  apply  for  it,  the  profits  should  be  lessened  by  the  leg- 
islature." ^ 

A  hundred  and  twenty  years  later  we  see  the  state 
politicians  of  Pennsylvania  permitting  a  contractor,  on 
a  contract  of  $9,000,000  for  the  erection  of  a  statehouse, 
to  make  a  profit  of  from  $4,000,000  to  $5,000,000.  Ma- 
hogany desks  which  cost  this  contractor  $40  were  sold 
to  the  state  for  $864,  a  profit  of  2,060;^.  Clothestrees 
that  cost  $2  were  sold  for  $73,  a  profit  of  3,550^.  Cor- 
ruption and  usurpation  of  power  go  hand  in  hand.  The 
people  of  Pennsylvania  do  not  need  censors  of  morals, 
but  they  do  need  thorough  regeneration. 

For  the  last  thirty  years  or  more  it  has  been  a  com- 
mon practice  with  the  legislature  of  New  York  to  amend 
the  charters  of  cities  by  creating  police  commissioners, 
and  fire  commissioners,  and  other  commissioners,  with 
the  provision  that  these  commissioners  should  be 
selected  in  equal  numbers  from  each  of  the  two  principal 
political  parties.  Such  amendments  have  been  made  to 
the  charters  of  the  cities  of  Buffalo,  Utica,  Syracuse, 
Elmira,  Rome,  Lockport,  Yonkers,  Watertown,  and 
Albany.  Finally,  the  Court  of  Appeals,  in  a  case  which 
arose  in  Albany,  declared  an  act  of  this  kind  unconstitu- 
tional as  an  interference  with  the  absolute  right  of  the 
city  to  control  the  election  of  its  local  officers.^ 

'  American  Academy  of  Political  and  Social  Science,  pam- 
phlet No.  200,  pp.  97,  98. 
2  150  N.  Y.,  459,  510,  512. 


324  FEDERAL    USURPATION 

In  1900  the  state  of  Michigan  had  an  experience  with 
this  same  kind  of  legislation.  Detroit  had  elected  a 
Democratic  mayor.  The  Republican  Governor  of  the 
state,  acting  in  connection  with  the  defeated  officials  of 
his  party  in  Detroit,  secured  the  passage  of  a  bill  de- 
priving the  Mayor  of  his  power  of  appointment  of  city 
oflficials  and  giving  it  to  the  City  Council,  and  through 
this  Council  the  state  controlled  the  city.  In  1905  the 
Massachusetts  legislature  passed  an  act  uniting  the 
City  of  Boston  with  the  state  in  making  certain  improve- 
ments, but  this  bill  was  vetoed  by  Mayor  Collins  and 
did  not  become  a  law.  A  few  years  ago  the  City  of 
Chicago  was  controlled  by  the  legislature  of  the  state  of 
Illinois.  Finally,  the  people  of  Chicago  succeeded  in  pro- 
curing the  right  of  a  referendum  for  legislation  affecting 
the  city,  and  secured  self-government  for  themselves. 

The  methods  of  state  legislation  are  doing  much  to 
centralize  power  in  the  state.  All  legislation  is  carried 
on  in  the  state  legislatures  in  the  same  manner  that  I 
have  described  in  the  chapter  on  Congressional  Usurpa- 
tion. The  struggle  on  the  part  of  assemblymen  and 
senators  is  to  secure  an  appointment  on  one  of  the  lead- 
ing committees.  Behind  the  doors  of  the  committee 
rooms  is  hidden  the  corruption  which  has  done  so  much 
to  discredit  state  governments.  The  chairman  of  a 
committee  frequently  will  not  bring  a  bill  referred  to 
that  committee  before  it  at  all.  Many  of  the  proposed 
laws  are  never  reported  by  the  committees.  Sub- 
committees, selected  by  the  chairman,  are  often  em- 
ployed to  strangle  a  proposed  law.  Special  legislation 
affecting  localities,  once  reported  from  a  committee,  is 


STATE   CENTRALIZATION  325 

almost  sure  to  pass  the  House  with  little  or  no  discus- 
sion. The  result  is  that  the  people  are  unable  to  procure 
information  about  what  is  going  on  m  their  legislatures. 
The  division  of  the  legislature  into  many  small  legislative 
bodies,  the  lack  of  discussion  in  the  full  body,  and  the 
power  of  the  Speaker  and  the  Committee  on  Rules,  in 
the  last  days  of  a  session,  to  jam  through  hundreds  of 
bills  without  any  discussion  whatever,  result  in  the  pas- 
sage of  many  measures  which  never  could  be  passed  if 
public  attention  was  directed  to  them  and  public  dis- 
cussion encouraged. 

These  methods  have  brought  a  bad  reputation  to  the 
state  legislatures.  Everywhere  there  are  attempts  to 
limit  their  meetings.  Only  six  states  now  have  annual 
sessions — Georgia,  Massachusetts,  New  Jersey,  Rhode 
Island,  New  York,  and  South  Carolina.  In  Mississippi 
and  Alabama  the  legislature  meets  only  once  in  four 
years.  We  make  laws  in  our  state  legislatures  by  the 
thousands  to  be  laughed  at.  No  other  country  in  the 
world  permits  so  many  restrictive  and  sumptuary  laws. 
Many  of  these  laws,  like  those  prohibiting  the  sale  of 
liquor,  are  passed  at  the  request  of  good  people,  the 
members  well  knowing  that  they  will  never  be  enforced. 
The  usual  result  of  such  legislation  is  that  police  officials 
sell  the  right  to  violate  the  law  and  that  its  violation  is 
approved  by  a  large  part  of  the  people.  The  popular 
remedy  for  bad  morals,  social  sins,  and  all  kinds  of 
human  dereliction,  is  an  act  of  the  legislature.  There  is 
no  surer  sign  of  decadence  than  this  mania  for  such  law- 
making. During  the  five  years  from  1899  to  1904, 
45,552  acts  were  passed  by  American  legislatures.     Of 


326  FEDERAL    USURPATION 

these  enactments,  16,320  were  public  or  general  laws, 
while  the  remainder  were  special  or  local. ^  The  legis- 
latures of  the  different  states  in  our  Union  probably  pass 
more  laws  each  year  than  are  passed  during  the  same 
time  by  all  the  other  legislative  bodies  in  the  world,  out- 
side of  the  Congress  of  the  United  States. 

Pinckney,  of  South  Carolina,  Madison,  Hamilton,  and 
several  other  members  of  the  Constitutional  Convention 
urged  that  the  National  Legislature  should  have  author- 
ity to  negative  all  laws  passed  by  the  states  which  they 
thought  were  improper.  This  was  advocated  for  several 
days  and  with  great  force  before  the  Convention,  but 
was  finally  defeated.  Lansing,  of  New  York,  with  little 
comprehension  of  the  future,  declared  that  such  a  scheme 
was  impracticable.  He  said:  "Is  it  conceivable  that 
there  will  be  leisure  for  such  a  task?  There  will  on  the 
most  moderate  calculation  be  as  many  laws  sent  up  from 
the  States  as  there  are  days  in  the  year."  In  the  ancient 
town  of  Locri,  in  Magna  Graecia,  the  first  written  code 
of  laws  in  the  ancient  Roman  world  was  promulgated. 
One  of  its  most  wholesome  provisions  was  that  the  pro- 
poser of  a  new  law  should  stand  forth  in  the  public  as- 
sembly with  a  rope  about  his  neck,  and  that  if  the  law 
was  rejected  its  proposer  should  be  strangled.  Such  a 
provision  in  our  American  states  would  be  a  wholesome 
preventive  upon  hasty  legislation.  Buckle  has  well  said 
that  for  five  hundred  years  all  advance  in  legislation  has 
been  made  by  repealing  laws. 

Before  the  Civil  War  considerable  honor  was  con- 

'  Reinsch,  American  Legislatures  and  Legislative  Methods, 
p.  300. 


STATE    CENTRALIZATION  327 

nected  with  the  office  of  Member  of  Assembly  or  State 
Senator.  In  more  recent  days  men  of  high  character  as 
a  rule  have  not  sought  such  positions.  Many  a  lawyer 
has  sought  the  office  of  Member  of  Assembly  or  Sena- 
tor with  no  higher  purpose  than  to  attach  himself  to 
industrial  interests  and  thus  procure  a  clientage.  It  is 
those  kind  of  legislators  who  through  secret  committees 
get  their  clients  special  legislation.  In  Alabama,  Cali- 
fornia, Kentucky,  Louisiana,  and  Mississippi  statutes 
have  been  passed  in  recent  years  exempting  cotton  or 
woolen  manufacturers,  beet  sugar  plants,  or  other  manu- 
facturing enterprises  from  local  taxation  for  periods  of 
from  three  to  fifteen  years.  The  legislatures  of  no  less 
than  sixteen  different  states  have  passed  similar  laws.  In 
the  Maryland  Legislature  of  1900  fifteen  acts  freeing 
bond  issues  from  a  state  tax  were  passed.  It  would  seem 
that  all  this  line  of  legislation  was  clearly  unconstitutional. 
There  is  no  abuse  in  our  day,  however,  which  tends 
more  to  centralization  of  state  government  than  the  fre- 
quent exercise  of  the  discretion  in  state  appellate  courts 
of  setting  aside  judgments,  entered  upon  verdicts  of 
juries  as  against  the  weight  of  evidence.  The  petit  jury, 
in  something  like  its  present  form,  has  existed  since 
about  the  reign  of  Henry  II  (11 54-1 189).  So  highly  was 
this  right  regarded  that  many  of  the  original  thirteen 
states  reluctantly  approved  the  Constitution  without  the 
existence  of  this  safeguard,  and  by  one  of  the  first  ten 
amendments  it  was  secured  to  litigants  in  United  States 
Courts.  Every  one  of  the  original  thirteen  states  guar- 
anteed this  right  to  litigants  in  its  courts.  Every  one  of 
our  states  to-day  secures  this  right  by  its  constitution, 


328  FEDERAL    USURPATION 

and  yet  every  lawyer  with  wide  experience  in  the  trial 
of  cases  is  aware  that  the  verdict  of  a  jury  has  entirely 
lost  its  conclusiveness,  and  is  treated  as  merely  advisory 
to  the  court.  Twenty  years  ago  no  principle  of  law  was 
better  settled  than  that  a  verdict  of  a  jury  could  not  be 
set  aside  unless  it  was  so  contrary  to  the  preponderating 
proof  as  to  be  evidence  that  the  jury  had  been  controlled 
by  prejudice,  passion,  or  corruption.^     To-day  it  is  a 

•Hospital  Supply  Q).  v.  O'Neill,  lo  Misc.  Rep.,  656,657; 
Morse  v.  Wright,  63  Barb.,  21;  Fleming  v.  Smith,  44  Barb.,  554; 
Beckwith  v.  R.R.  Co.,  64  Barb.,  299;  Cheney  v.  R.R.  Co.,  16 
Hun,  415;  Dollner  v.  Lintz,  9  Daly,  17;  Duffus  v.  Schwinger,  92 
Hun,  70;  Swartout  v.  Willingham,  6  Misc.  Rep.,  179;  August 
V.  Fourth  Nat'l  Bk.,  15  St.  Rep.,  956;  Polhemus  v.  Moser, 
7  Robertson,  489;  Cothran  v.  Collins,  29  Howard  Pr.,  155; 
Heritage  v.  Hall,  1,7^  Barb.,  347;  Hinckinbottom  v.  Del.,  Lack. 
&  W.  R.R.  Co.,  15  St.  Rep.,  13;  Grassley  v.  McArdle,  74  Hun, 
133;  Coleman  v.  Southwick,  9  Johnson,  46;  Strohm  v.  N.  Y., 
Lake  E.  &  W.  R.R.  Co.,  32  Hun,  21 ;  Peck  v.  N.  Y.  C.  &  H.  R.R. 
Co.,  8  Hun,  289;  Gale  v.  N.  Y.  C.  &  H.  R.R.  Co.,  13  Hun,  5; 
Bierhauer  v.  N.  Y.  C.  &  H.  R.R.  Co.,  15  Hun,  564;  Minck  v. 
City  of  Troy,  19  Hun,  253;  Culver  v.  Avery,  7  Wend.,  384; 
Drennen  v.  Brown,  10  Ark.,  138;  St.  L.  S.  W.  R'y  Co.  v.  Byrne, 
73  Ark.,  377;  Amsby  v.  Dickhouse,  4  Cal.,  102;  Bishop  v.  Per- 
kins, 19  Conn.,  300;  Burton  v.  R.R.  Co.,  4  Har.,  252;  Stewart 
V.  Elliott,  2  Mackay,  307;  Walker  v.  Walker,  11  Ga.,  203;  War- 
ner V.  Robertson,  13  Ga.,  370;  Spurlock  v.  West,  80  Ga.,  306; 
Kincaid  v.  Turner,  7  111.,  618;  Muldowney  v.  R.R.  Co.,  32  la., 
178;  Cavender  v.  Fair,  40  Kans.,  182;  Milo  v.  Gardner,  41  Me., 
549;  Baker  v.  Briggs,  8  Pick.,  121;  Cunningham  v.  Magoun,  18 
Pick.,  13;  Hicks  v.  Stone,  13  Minn.,  434;  Kansas,  etc.,  R'y  Co. 
V.  Dawley,  50  Mo.  App.,  489;  McGatrick  v.  Wason,  4  O.  St., 
566;  Hall  V.  Hodge,  2  Tex.,  323;  Gibson  v.  Hill,  23  Tex.,  77; 
Campbell's  Lessee  v.  Sproat,  i  Yeates,  327;  Morien  v.  N.,  etc., 
Co.,  102  Va.,  622;  Fearing  v.  DeWolf,  3  Woodb.  &  M.,  185; 
Gilmer  v.  City,  16  Fed.,  708;  Davey  v.  .(Etna  L.  I.  Co.,  20  Fed., 
494;  Plummer  v.  Granite  M.  M.  Co.,  55  Fed.,  755. 


STATE    CENTRALIZATION  329 

common  occurrence  in  appellate  courts,  in  about  every 
state  of  the  Union,  to  set  aside  the  verdict  of  a  jury  when 
the  court  is  not  satisfied  with  its  justice. 

The  judge  who  presides  upon  the  trial  of  a  case 
before  a  jury  has  an  opportunity  to  observe  the  appear- 
ance of  the  witnesses,  and  to  form  a  reasonably  cor- 
rect impression  as  to  their  credibility.  Those  impres- 
sions might  well  amount  to  a  conviction  which  would 
justify  his  action  in  setting  aside  a  verdict  as  against 
evidence.  But  an  appellate  court  has  no  opportunity  to 
see  the  witnesses  except  upon  paper,  and  it  has  been 
well  said  that  all  witnesses  look  alike  upon  paper.  They 
do  not  look  alike  to  the  jury.  The  manner  in  which  a 
witness  walks  when  called  to  the  stand,  his  attitude  in 
taking  the  oath,  his  face,  which  may  be  indictable  at 
common  law,  all  these  things  are  seen  by  the  jury,  and 
their  conviction  as  to  the  credibility  of  his  testimony 
cannot  well  be  reviewed  in  the  higher  court.  Notwith- 
standing these  reasons,  apparent  to  anyone  why  verdicts 
should  not  be  lightly  set  aside,  it  is  becoming  a  most 
common  occurrence  for  appellate  courts  to  reverse  such 
judgments.  If  the  verdict  of  a  jury  may  be  set  aside  in 
any  case  where  the  court  is  not  satisfied  with  it,  if  the 
court  must  be  satisfied  as  well  as  the  jury,  then  the 
jury  trial  ought  to  be  dispensed  with  altogether.  It  has 
been  held,  in  recent  days,  that  if  there  has  been  three 
successive  verdicts  in  favor  of  one  party,  the  Appellate 
Court  will  not  reverse  the  final  judgment.^  But  even 
this  rule,  which  requires  a  poor  man  to  get  thirty-six 

»  McCann  v.  New  York  &  Queens  County  Ry.  Co.,  73  App. 
Div.,  305;  Lacs  v.  Everard's  Breweries,  107  App.  Div.,  250. 


330 


FEDERAL   USURPATION 


jurors  to  agree  that  he  has  proved  his  case,  has  been 
declared  by  an  appellate  court  as  untenable,  the  court 
holding  that,  if  in  its  opinion  the  verdict  is  not  sustained 
by  the  evidence,  it  matters  not  how  many  times  a 
similar  verdict  has  been  rendered  in  the  case,  the  court 
should  set  it  aside.^ 

Because  of  this  manner  of  regarding  verdicts,  and 
because  of  the  technical  grounds  on  which  judgments 
are  reversed  in  higher  courts,  ordinary  litigation  now  is 
frequentl)'  a  matter  of  years  of  delay,  and  to  poor  plain- 
tiffs is  equivalent  to  the  miscarriage  of  justice.  Thirty 
to  forty  per  cent  of  all  appeals  iji  the  several  states 
result  in  reversals.  If  any  error  exists  as  against  the 
appellant,  however  slight,  either  in  the  admission  of 
evidence  or  in  the  charge  of  the  trial  judge,  the  pre- 
sumption of  prejudice  to  the  defeated  party  requires  a 
reversal.  A  large  proportion  of  the  decisions  of  higher 
courts  are  made  by  only  a  majority  of  the  judges.  In 
all  the  cases  wherein  the  United  States  Supreme  Court 
has  held  a  national  statute  to  be  unconstitutional,  before 
1894  there  were  only  six  in  which  the  Court  was  unani- 
mous. Notwithstanding  that  a  majority  of  an  appellate 
court  can  reverse  or  affirm  a  judgment,  the  consent  of 
every  juror  in  most  states  is  required  in  order  to  obtain 
a  verdict.  The  result  of  this  constitutional  requirement 
is  that  there  are  delays  and  miscarriages  of  justice. 

In  manufacture,  agriculture,  and  every  other  field 
of  human  industry  or  activity,  in  recent  years  there  has 
been  a  steady  advance  movement.     Thirty  years  ago, 

'  Meinrenken  v.  New  York  Central  Railroad  Co.,  103  App. 
Div..  319. 


STATE   CENTRALIZATION  331 

however,  the  trial  of  civil  cases  was  more  simple  and 
expeditious  than  it  is  to-day.  The  whole  tendency  in 
recent  times  has  been  to  obstruct  the  speedy  conclusion 
of  litigation,  by  reversals  upon  technical  grounds  which 
do  not  go  to  the  merits,  or  because  appellate  courts, 
which  perhaps  never  read  the  whole  of  the  evidence, 
are  dissatisfied  with  the  verdict.  This  results  practically 
in  depriving  the  citizen  of  rights  secured  to  him  by  the 
Constitution,  and  is  one  of  the  most  grievous  conditions 
in  our  day.  It  would  not  take  long  to  gather  from  the 
reports  of  the  different  states  of  the  Union,  hundreds 
of  cases  which  have  been  running  in  courts  for  periods 
of  from  five  to  twenty  years,  and  in  which  there  have 
taken  place  from  three  to  ten  trials.  In  the  law  reports 
of  England,  for  the  period  from  1890  to  1900,  it  appears 
that  new  trials  were  granted  in  less  than  3^^  of  all 
the  cases  appealed.^  It  has  well  been  said  by  an  able 
judge  that  "  There  is  no  scourge  in  the  hands  of  the 
strong  against  the  weak  like  this  scourge  of  new  trials. 
It  can  wear  out  the  strength  and  endurance  of  the  weak, 
and  it  has  been  used  for  that  purpose."  ^ 

To  the  delays  in  the  administration  of  the  law  on  its 
criminal  as  well  as  its  civil  side  may  be  attributed  the 
condition  of  lawlessness  and  lynching  which  is  so  prev- 
alent in  our  country.  In  no  other  civilized  country  does 
such  a  condition  exist.  The  jury  system  undoubtedly 
has  imperfections,  but  compared  with  other  human  in- 
stitutions to  procure  justice  it  has  best  borne  the  test 
of  long  experience.    This  system  has  done  more  among 

1  American  Law  Review,  vol.  xl,  p.  681. 

» Judge  Chas.  F.  Amidon,  Amer.  Law  Rev.,  vol.  xl,  p.  690. 


332  FEDERAL    USURPATION 

English-speaking  people  to  maintain  freedom  than  all 
other  causes  combined.  You  hardly  can  find  a  lawyer 
of  wide  experience  in  the  trial  of  cases  before  juries 
who  does  not  believe  that  under  the  guidance  of  an  in- 
telligent judge  the  system  brings  justice  in  the  majority 
of  cases.  There  is  no  better  proof  of  its  wisdom  than 
the  fact  that  it  did  not  exist  among  the  continental 
countries  of  Europe  until  the  nineteenth  century,  and 
that  during  that  century  it  has  been  adopted  by  many 
of  the  most  enlightened  states,  and  that  it  always  has 
been  continued  in  any  country  where  it  has  been 
adopted.  In  England,  even  James  II  was  obliged  to 
send  the  Bishops  to  trial  by  jury,  and  endure  the  morti- 
fication of  seeing  them  acquitted. 

The  abuses  that  have  come  in  jury  trials  are  largely 
the  result  of  the  requirement  of  a  unanimous  verdict. 
Those  abuses,  to  a  much  greater  extent  than  generally 
has  been  believed,  have  been  the  result  of  tampering 
with  one  or  two  jurymen  in  important  cases.  That  such 
a  system  is  carried  on  in  some  cities  is  established  be- 
yond the  slightest  doubt.  The  people  owe  it  to  them- 
selves to  change  the  provisions  of  their  state  constitu- 
tions requiring  a  unanimous  verdict,  and  to  allow  the 
verdict  of  nine  jurors  to  determine  the  rights  of  the  par- 
ties. No  change  in  the  fundamental  law  of  the  states 
could  bring  such  wholesome  results  as  this. 

The  state  courts  of  Connecticut  furnish  us  with  an 
example  of  the  results  of  doing  away  with  jury  trials  in 
a  certain  class  of  cases.  It  has  become  the  practice  in 
that  state  in  many  actions  in  tort  for  the  defendant  not 
to  interpose  an  answer  to  the  complaint.    By  this  device 


STATE   CENTRALIZATION  ^^^ 

the  amount  of  damages  suffered  by  the  plaintiff  is  de- 
termined by  the  court  without  a  jury.  The  right  of  a 
plaintiff  to  have  his  damages  assessed  before  a  jury  in 
such  cases  has  been  seriously  contested.  But  the  Con- 
necticut appellate  courts  have  decided  that  he  has  no 
such  right. ^  The  result  of  this  holding  has  been  that 
in  cases  of  serious  injury,  or  even  of  death  resulting 
from  the  defendant's  negligence,  the  plaintiff  frequently 
has  received  at  the  hands  of  the  judge  but  slight  damages. 

The  result  of  these  delays  and  miscarriages  of  jus- 
tice is  that  negligence  has  become  a  normal  condition 
in  our  country.  "  Let  it  go  at  that,"  seems  to  be  writ- 
ten all  over  the  face  of  our  railway  management  and 
industries.  Between  June  30,  1897,  and  June  30,  1900, 
war  was  being  carried  on  between  Great  Britain  and 
the  South  African  Republic,  but  that  war,  with  its  sharp- 
shooting  Boer  farmers,  was  but  slightly  more  deadly  to 
the  British  forces  than  the  negligence  of  the  railways  of 
the  United  States  was  to  our  people.  During  those 
three  years  ending  June  30,  1900,  21,847  persons  were 
killed  on  American  railways.  During  the  same  time  the 
British  forces  in  South  Africa,  including  deaths  from 
disease,  lost  22,000  men.  In  thirteen  years  ending  June 
30,  1900,  according  to  the  official  reports,  86,277  people 
were  killed  on  the  railways  of  our  country.  During  the 
same  period  469,027  persons  were  injured. 

Away  back  in  the  days  of  carpetbag  government  in 
Louisiana  the  courts  commenced  the  use  of  injunctions 
to  control  political  parties.    The  first  injunction  granted 

I  Seeley  v.  City  of  Bridgeport,  53  Conn.,  i;  Lennon  v.  Ra,- 
witzer,  57  Conn.,  583. 


334  FEDERAL   USURPATION 

in  those  days  astonished  lawyers.  In  our  day,  how- 
ever, in  the  state  of  Colorado,  the  proceedings  of  the 
Star  Chamber  are  quite  outdone.  Alvah  Adams  was 
elected  on  the  face  of  the  returns  as  Governor  of  Col- 
orado. The  Supreme  Court  of  that  state  at  General 
Term  issued  a  temporary  injunction  staying  the  dec- 
laration of  his  election,  found  that  there  had  been  fraud 
in  his  election,  punished  some  of  the  alleged  wrong- 
doers for  contempt  of  court,  and,  without  a  particle  of 
jurisdiction,  conducted  the  whole  matter  to  a  conclusion 
satisfactory  to  itself. 

A  year  or  two  later  a  city  election  was  held  in  Den- 
ver, and  Supreme  Court  Judge  Johnson,  sitting  at  cir- 
cuit, sought  through  injunction  against  fraudulent  vot- 
ing to  follow  this  precedent  and  conduct  the  election 
in  the  same  manner  as  the  higher  court  had  in  the  case 
of  the  Governorship.  Thereupon  the  higher  court  is- 
sued its  writ  of  prohibition  stopping  Judge  Johnson 
from  exercising  the  jurisdiction  which  it  had  exercised, 
although  its  power  in  the  matter  was  the  same  as  that 
of  the  Circuit  Judge.  In  vain,  counsel  pleaded  on  the 
motion  to  dismiss  this  writ,  that  Judge  Johnson  was 
following  the  precedent  of  the  appellate  court,  and  that, 
as  a  court  at  special  term,  he  was  entitled  to  do  exactly 
what  the  appellate  court,  which  was  given  original  juris- 
diction, had  done  in  the  Adams  case.  But  the  appellate 
court  held  that  it  had  exclusive  right  to  supervise  elec- 
tions by  the  high  prerogative  writ  of  injunction,  while 
the  other  courts  of  general  jurisdiction  throughout  the 
state  had  no  such  power. 

The  state  of  Colorado  has  seen  in  the  last  few  years 


STATE   CENTRALIZATION  335 

a  condition  of  open  flagrant  bribery,  failure  on  the  part 
of  the  state  legislature  to  carry  out  the  constitutional 
amendment  prescribing  an  eight-hour  day,  the  suppres- 
sion of  about  every  constitutional  right  of  the  citizen, 
the  deporting  of  men  and  women  from  the  state  for  the 
ofTense  of  agitation,  and  the  forcing  of  the  resignation 
of  officers  elected  by  the  people  by  means  of  ropes 
about  their  necks.  Nowhere  in  the  civilized  world,  in 
recent  times,  have  the  constitutional  rights  of  the  citi- 
zen been  so  shamelessly  violated  by  the  executive  and 
the  Courts  as  in  that  state. 

No  person  who  has  been  observing  with  care  the 
conditions  existing  throughout  our  country  in  recent 
years  can  help  but  see  that  there  is  a  marked  tendency 
to  disregard  the  liberties  of  the  citizen.  For  many  years, 
in  the  city  of  New  York,  it  has  been  common  to  arrest 
men  without  a  warrant  for  misdemeanors  not  taking 
place  in  the  presence  of  the  officer.  In  fact,  it  has  been 
a  matter  of  common  occurrence  to  arrest  men  at  night 
without  any  written  complaint  or  warrant,  and  to  hold 
them  to  await  the  filing  of  a  complaint.  The  public 
prosecutors  for  many  years  have  been  in  the  habit  of 
arresting  men  on  what  are  known  as  John  Doe  war- 
rants, although  in  the  case  of  John  Wilkes,  as  far  back 
as  1763,  when  the  Secretary  of  State  in  England  issued 
a  general  warrant  for  the  persons  of  the  authors  and 
printers  of  the  North  Britain,  it  was  held  by  the  Eng- 
lish Courts  that  such  warrants  were  invalid,^  and  since 
that  time  no  court  has  sustained  their  validity.  The 
prohibition   of  such   warrants   is   found   in   the    Fourth 

'  Goldwin  Smith,  The  United  Kingdom,  vol.  ii,  p.  201. 


336  FEDERAL   USURPATION 

Amendment  to  the  Constitution  of  the  United  States, 
Such  a  prohibition  was  found  in  the  first  constitutions 
of  Massachusetts,  Virginia,  Vermont,  Pennsylvania,  and 
New  Hampshire.  Yet  these  seem  trivial  rights  to  our 
public  prosecutors.  In  like  manner  the  right  of  the 
defendant  in  criminal  proceedings  to  a  speedy  trial  is 
steadily  disregarded  in  the  state  of  New  York. 

Such  violations  of  personal  rights,  continued  for  any 
considerable  period  of  time,  by  and  by  will  destroy 
constitutional  guarantees.  The  Mexican  Constitution, 
passed  in  1857,  is  almost  a  copy  of  our  own.  It  provides 
carefully  for  the  rights  of  the  defendant  in  criminal  pro- 
ceedings, yet  by  constant  abuse  it  has  come  to  mean 
nothing.  A  prisoner  arrested  is  secluded  for  seventy- 
two  hours  after  his  arrest,  during  which  time  while  in 
solitary  confinement  his  statement  is  taken  by  the  judge. 
The  constitutional  provision  that  he  must  be  confronted 
by  the  witnesses  is  complied  with  by  reading  the  testi- 
mony of  the  witnesses  to  the  accused,  and  he  is  given  an 
opportunity  to  cross-examine  them  only  through  the  pre- 
siding judge.  In  one  way  and  another  about  all  the  safe- 
guards of  the  prisoner  are  destroyed  by  construction. 
Under  the  Magoon  code  in  Panama  the  presiding  judge, 
with  two  mayors  selected  by  him,  sit  and  try  men  on 
accusations  of  murder.  Two  votes  of  the  three  are  suf- 
ficient to  convict.  The  men  who  are  in  the  employ  of 
the  United  States  government,  constructing  this  great 
water  way,  are  subjected  to  that  kind  of  government  by 
the  United  States,  which  so  carefully  has  secured  to  its 
citizens  in  criminal  proceedings  the  safeguards  of  the 
English  law.     Under  our  present  autocratic  tendencies, 


STATE   CENTRALIZATION  337 

with  the  growing  disregard  for  personal  rights,  how 
long  will  it  be  before  the  same  disregard  will  become 
permanent  in  our  own  criminal  courts? 

I  have  detailed  these  defects  in  our  state  govern- 
ments because  just  such  abuses  give  force  to  the  cry 
that  the  national  government  should  take  the  control  of 
such  matters  from  the  states.  Reverence  for  laws  and 
courts  cannot  long  exist  unless  the  lawmaking  power 
and  the  administration  of  the  law  continue  worthy  of 
respect.  Examples  of  justice  in  government  are  a  thou- 
sand times  more  beneficial  to  the  people  than  the  un- 
bounded charity  of  our  millionaires.  It  is  the  hasty, 
careless,  and  corrupt  enactment  of  laws,  together  with 
such  execution  of  justice  as  I  have  described,  which  is 
bringing  state  rights  into  disrepute.  Our  modern  state 
legislators  are  apt  to  mistake  vexatious  forms  of  coer- 
cion for  legitimate  regulation  of  domestic  affairs.  We 
are  unnecessarily  multiplying  legal  restrictions  upon 
every  form  of  human  action,  and  if  these  are  not  en- 
forced, the  legislative,  executive,  and  judicial  powers  are 
brought  into  bad  repute.  Whenever  a  cry  goes  up 
against  some  evil  condition  the  legislature  proceeds  to 
enact  a  prohibitory  statute  or  a  penal  law  condemning 
it,  and  then  very  often  it  is  left  unenforced. 

We  are  apt  to  protect  with  a  high  degree  of  care  all 

property  rights,  but  fail  to  defend  the  liberties  of  the 

citizen.     All  unreasonable   restrictions  upon  his  rights 

of  action,  speech,  and  public  assembly  are  not  only  not 

in  keeping  with  our  own  ideas  of  liberty,  but  indicate 

a  tendency  toward  such  conditions  as  exist  in  Prussia, 

Russia,  and  other  absolute  governments.     The  way  to 
23 


338  FEDERAL   USURPATION 

stop  usurpation  of  the  national  government  is  to  make 
our  state  governments  what  they  should  be,  and  endear 
them  to  the  people  by  the  justice  of  their  laws  and  the 
freedom  aflForded  to  innocent  action.  Patriotism  in  our 
states,  instead  of  demonstrating  itself  in  the  careful 
study  of  our  institutions  and  in  an  attempt  to  improve 
their  condition,  finds  its  expression  too  often  in  vain- 
glorious assertion  and  sentimental  flag  cheering.  Man- 
uals of  patriotism  for  public  schools  prescribing  patri- 
otic exercises,  and  flag  worship,  and  all  that  sort  of  a 
thing,  will  avail  nothing  unless  the  states  give  to  their 
people  a  kind  of  government  which  arouses  patriotism. 
The  national  government  has  no  powers  but  those 
delegated  to  it  by  the  states.  The  states,  on  the  other 
hand,  are  imfettered  by  any  limitations  whatever  except 
through  their  constitutions,  and  their  courts  are  es- 
pecially adapted  to  deal  with  the  great  mass  of  questions 
relating  to  life,  limb,  health,  and  the  security  of  property. 
When  it  appears  that  a  corporation  has  procured  its 
charter  through  briber}'  or  corruption,  our  state  courts 
can  destroy  the  charter  of  that  corporation,  except  so 
far  as  liens  upon  its  property  have  passed  into  the  hands 
of  bona  Ude  purchasers.  The  way  to  take  care  of  com- 
binations and  trusts,  which  through  bribery  secure 
special  legislation,  is  through  state  law.  The  Attorney- 
General  should  be  given  ample  power  to  institute  ac- 
tions to  declare  such  grants  void.  A  simple  remedy 
against  the  extortions  of  the  trusts  could  be  found  in 
the  power  of  the  state  governments  to  refuse  permis- 
sion to  such  combinations  as  are  incorporated  without  a 
state  to  carry  on  business  in  that  state.    An  agreement 


STATE   CENTRALIZATION  339 

of  this  kind  between  many  states  would  be  found 
effective. 

Laws  should  be  passed  in  every  state  requiring  po- 
litical parties  to  disclose  under  oath  the  sums  paid  to 
party  organizations  on  all  occasions,  the  names  of  the 
persons  paying  them,  and  a  full  account  of  the  matter. 
No  measure  could  be  more  productive  of  good  than  the 
destruction  of  the  committee  system  in  our  legislatures. 
The  laws  of  each  state  should  require  that  each  bill  and 
resolution,  referred  to  a  committee,  should  be  reported 
by  the  committee  within  ten  days  after  its  reference. 
The  minority  of  a  committee  should  have  the  power  to 
report  a  bill,  although  it  has  not  been  accepted  by  the 
committee  for  the  consideration  of  the  Assembly  or  the 
Senate.  In  no  way  can  the  tendency  to  centralization 
be  so  eflfectually  lessened  as  by  vigorous  support  of  local 
self-government.  The  city,  the  county,  the  town,  are 
the  ones  which  suffer  from  special  legislation.  The 
functions  of  the  town  and  the  village  and  the  county  are 
impaired  in  every  case  where  control  of  their  local  mat- 
ters is  taken  over  by  the  state  government.  The  posi- 
tive, unquestioned  sovereignty  of  the  states  in  every 
detail  of  their  reserved  rights  should  be  actually  used 
and  jealously  guarded.  In  this  way  more  than  any  other 
can  we  avert  the  encroachments  of  the  national  govern- 
ment. 

The  National  Republican  party  in  i860  expressly  dis- 
claimed any  intention  or  any  legal  power  to  interfere 
with  state  rights.  Its  national  platform  contained  the 
following:  "Resolved,  That  the  maintenance  inviolate  of 
the  rights  of  the  states,  and  especially  the  right  of  each 


340  FEDERAL    USURPATION 

State  to  order  ^nd  control  its  own  domestic  institutions 
according  to  its  own  judgment  exclusively,  is  essential 
to  that  balance  of  power  on  which  the  perfection  and 
endurance  of  our  political  fabric  depends."  The  Repub- 
lican party  to-day  and  the  Democratic  party  would  both 
declare  and  adhere  to  such  doctrine  if  the  people  de- 
manded it. 

When  Washington  was  President  of  the  United 
States,  so  much  dignity  was  attached  to  the  position  of 
Governor  of  New  York  that  it  was  a  point  of  etiquette 
whether  Governor  Clinton  should  first  call  upon  the 
President,  or  the  President  upon  the  Governor.  When 
President  Washington  visited  Boston,  the  same  ques- 
tion came  up  as  to  whether  he  should  first  call  upon 
Governor  Hancock  or  the  Governor  upon  the  President. 
The  people  in  those  days  were  most  jealous  of  the  dig- 
nity of  their  state  officers  and  of  the  rights  of  the  states. 
But  all  this  has  changed. 

A  few  months  ago,  Governor  Hughes,  of  New  York, 
became  involved  in  a  contest  with  the  Senate  over  the 
removal  of  Superintendent  Kelsey  of  the  Insurance  De- 
partment. We,  who  are  proud  of  our  Governor  and  who 
know  his  fighting  capacity,  felt  assured  that  he  was  right 
and  that  he  was  quite  equal  to  the  occasion.  In  the 
midst  of  that  contest  the  newspapers  were  filled  with 
reports  that  the  President  had  interfered  in  the  contest, 
and,  as  an  indication  of  his  feeling,  was  about  to  appoint 
a  revenue  collector  at  Rochester  in  the  interests  of  Gov- 
ernor Hughes.  A  short  time  before,  the  President  had 
addressed  this  telegram  to  Governor  Guild,  of  Massa- 
chusetts : 


STATE   CENTRALIZATION  341 

The  White  House,  Washington,  June  loth. 
Governor  Curtis  Guild,  Boston,  Mass. : 

Have  been  requested  on  behalf  of  certain  parties  in  Boston  to 
interfere  with  the  execution  of  Tucker,  it  being  alleged  that  it  is  my 
duty  so  to  do  inasmuch  as  I  have  the  power  under  the  Federal  laws. 

No  showing  has  been  made  to  me  that  I  have  such  power,  but, 
without  regard  to  this,  I  desire  to  state  to  you  that,  in  my  judgment, 
your  decision  not  to  interfere  with  the  carrying  out  of  the  sentence 
of  Tucker  seems  to  me  entirely  sound  and  commands  my  hearty 
sympathy.  It  seems  particularly  a  case  in  which  there  should  be 
no  interference  with  the  carrying  out  of  the  sentence. 

Theodore  Roosevelt. 

Instead  of  approving  such  action  on  the  part  of  the 
President  when  it  favors  the  interests  we  approve,  we 
should  condemn  it  with  all  vigor.  It  would  be  com- 
mendable in  the  President,  as  a  citizen  and  an  individual, 
to  take  an  interest  in  the  afifairs  of  New  York  and  Mas- 
sachusetts, but  as  President  his  interference  is  not  only 
uncalled  for,  but  it  is  highly  improper.  The  people  of 
any  state  should  resent  such  meddling  in  their  afifairs 
by  the  President  of  the  United  States.  In  no  other  way 
can  they  so  well  vindicate  the  sovereignty  and  the  dig- 
nity of  the  states  in  which  they  live.  If  they  will  not 
vindicate  those  rights,  if  the  words  upon  their  lips,  "  I 
am  a  citizen  of  New  York  " ;  "I  am  a  citizen  of  Massa- 
chusetts," are  not  words  of  pride,  they  ought  not  to 
complain  that  the  national  government  is  rising  in  power 
and  the  state  governments  are  declining. 


X 

USURPATION    IN    ADMINISTRATIVE    LAW 


"Administrative  law  is  'case  law  made  not  by  judges  but 
by  government  officials.'" 

Dicey. 


"There    is    certainly    danger   in    these    delegations    of    pre- 
eminent trust." 

Hallam. 

"Common  report  or  private  information  was  at  once  indict- 
ment and  evidence,  and  accusation  was  in  itself  condemnation." 

Froude. 


"The  history  of  both  France  and  Prussia  is  the  record  of  the 
building  up  of  a  consolidated  and  powerful  state  by  means  of  a 
great  bureaucracy,  directed  from  a  single  centre  and  pursuing 
a  uniform  policy;  and  so,  in  both  countries,  the  people  became 
accustomed  to  look  to  that  centre,  to  the  monarch  and  his 
officials  for  guidance  in  all  affairs.  .  .  .  Administrative  law 
'  relates  to  the  organization  and  working  of  the  national  executive 
both  central  and  local.'" 

Prof.  Ashley. 


"The  little  band  of  167  special  deputies,  agents,  and  inspectors 
on  the  pay  rolls  of  the  government  ten  years  ago  has  been  swelled 
to  an  army  of  more  than  three  thousand." 

Senator  Foraker, 
Cleveland,  December  21,  1907. 


CHAPTER   X 

USURPATION    IN    ADMINISTRATIVE   LAW 

In  no  branch  of  law  to-day  is  there  so  great  necessity 
for  clear  and  definite  ideas  as  in  administrative  law.  The 
numerous  commissions  described  in  the  last  chapter, 
their  existence  in  every  state  of  the  Union,  the  rapidity 
of  their  growth,  the  complexity  of  modern  commercial 
life,  the  power  of  interstate  commerce  commissions  to  fix 
the  rates  of  railways,  the  multiplication  of  commissions  in 
the  national  government,  the  imperial  domain  peopled  by 
tens  of  millions  of  people,  and  the  great  consolidation 
of  economic  interests,  together  with  the  impatience  of 
our  people  for  quick  results,  are  all  forces  which,  unless 
checked,  will  increase  the  field  of  administrative  law. 
Just  in  proportion  as  it  is  increased  the  rights  and  liber- 
ties of  the  citizen  will  be  abridged. 

The  nature  of  administrative  law  can  be  better  deter- 
mined by  a  description  of  its  sources  and  its  operation 
than  by  a  definition.  Administrative  law  is  made  by  the 
rulings  of  a  multitude  of  commissioners,  and  the  heads 
and  officials  of  departments  in  both  the  national  and  state 
governments.  It  involves  the  administration  of  all  these 
commissions  and  departments.  Private  law  regulates 
the  relations  of  individuals  between  themselves  and  is 
administered  by  the  courts.     Administrative  law,  in  the 

345 


346  FEDERAL   USURPATION 

main,  regulates  the  relations  between  the  individual 
citizen  in  the  state  and  the  state  itself  as  represented  by 
its  officials.  Of  course  this  does  not  include  criminal 
law  nor  constitutional  law,  but  administrative  law  is 
the  supplemental  and  detailed  application  of  all  laws 
passed  pursuant  to  the  Constitution,  and  includes  the 
nature  of  the  relations  between  the  administration  and  its 
agents,  on  the  one  side,  and  the  private  citizen,  on  the 
other,  whenever  he  comes  in  contact  with  mere  adminis- 
trative officers.  The  making  of  by-laws,  the  assessment 
of  taxes,  the  fixing  of  rates  by  the  Interstate  Commerce 
Commission,  the  decisions  of  the  Secretary  of  War  re- 
quiring the  removal  or  alteration  of  bridges  upon  the 
ground  that  they  have  become  an  obstruction  to  naviga- 
tion, the  decisions  of  each  of  the  heads  of  departments, 
the  determination  of  values  of  imported  goods  by  the 
customs  appraisers,  the  decisions  of  the  superintendent 
of  education,  the  boards  of  health,  the  boards  of  fish  and 
game  protectors,  and  of  hundreds  of  commissions  created 
under  the  national  and  state  governments,  these  all  afford 
illustrations  of  administrative  law. 

The  number  of  commissions  has  been  so  great  in  re- 
cent years  that  it  may  be  well  said  that  we  have  govern- 
ment by  commission.  In  1903  alone,  about  140  new  per- 
manent state  boards  and  offices  were  created,  as  well  as 
some  75  temporary  commissions  and  39  investigating 
committees.^  Scores  of  statutes  are  being  passed  every 
year  giving  to  governmental  agencies  more  power  with 
the  idea  of  remedying  abuses.  The  worse  the  abuse 
sought  to  be  remedied  the  greater  the  temptation  to  ex- 
» New  York  State  Library  Bulletin,  Review  of  Legislation,  1 903 . 


USURPATION    IN   ADMINISTRATIVE    LAW      347 

ercise  arbitrary  power  by  the  commissions.  We  look 
with  interest  to  the  Russian  bureaucracy,  but  we  fail 
to  observe  that  we  are  drifting  toward  just  such  abso- 
lute government  at  home.  We  are  a  republic  in  the 
Occident  ruled  largely  by  commissions,  and  an  empire  in 
the  orient  ruled  by  military  power.  From  year  to  year 
we  are  adopting  precisely  the  same  methods  of  bureau- 
cratic government  that  have  long  existed  in  France,  Rus- 
sia, and  Prussia. 

One  of  the  most  terrible  abuses  of  administrative  law 
in  recent  years  was  involved  in  the  decision  of  the  United 
States  Supreme  Court  in  the  case  entitled  United  States 
against  Ju  Toy.^  Ju  Toy,  in  the  year  1903,  was  a  pas- 
senger on  the  steamship  Dorick,  returning  from  China 
to  San  Francisco.  The  immigration  officers  of  San  Fran- 
cisco detained  him  as  a  person  not  allowed  to  enter  the 
country  under  our  laws.  Ju  Toy  declared  that  he  was 
born  in  the  United  States,  had  always  lived  here,  and 
that  they  had  no  right  to  turn  him  over  to  the  master  of 
the  vessel  to  be  returned  to  China.  Now  observe  the 
kind  of  a  hearing  he  had.  The  rules  of  the  Immigration 
Bureau  require  its  officers  to  prevent  communication  be- 
tween a  Chinese  immigrant  and  anyone  aside  from  the 
immigration  officers.  They  conduct  a  private  examina- 
tion to  determine  whether  he  has  the  right  to  land,  the 
head  of  the  commission  designating  the  only  witnesses 
who  may  be  present  upon  the  examination.  Generally 
no  opportunity  is  given  to  the  person  to  procure  counsel. 
After  such  a  hearing  as  this,  Ju  Toy  was  held  by  the 
Commissioner  of  Immigration  as  not  entitled  to  admis- 
>  198  U.  S.,  253. 


348  FEDERAL    USURPATION 

sion.  The  only  remedy  for  such  a  decision  is  an  appeal 
to  the  Secretary  of  the  Treasury.^  The  person  who  has 
been  tried  and  found  not  entitled  to  enter  the  country 
must  take  this  appeal  within  two  days  after  the  decision. 
Within  three  days  thereafter  the  record  must  be  sent  to 
the  Secretary  of  the  Treasury  at  Washington.  The  rules 
of  the  Department  require  that  every  doubtful  question 
shall  be  settled  in  favor  of  the  government,  and  that  the 
burden  of  proof  in  such  a  case  rests  upon  the  person 
claiming  the  right  of  admission.  The  Secretary  of  the 
Treasury  heard  this  appeal  and  affirmed  the  decision. 

Then  Ju  Toy  procured  a  writ  of  habeas  corpus  from 
a  District  Judge  of  the  United  States,  alleging  that  he 
had  been  born  in  the  United  States,  that  he  was  a  citizen 
thereof,  that  he  had  gone  to  China  on  a  visit,  and  that 
he  had  returned  to  this  country  and  had  been  denied  ad- 
mission by  the  head  of  the  Commission  of  Immigration, 
that  an  appeal  had  been  taken  to  the  Secretary  of  the 
Treasury,  and  that  the  decision  had  been  affirmed,  and 
that  he  was  wrongfully  deprived  of  his  liberty.  The  Dis- 
trict Judge  granted  the  writ  of  habeas  corpus,  and  upon 
the  return  thereof  the  Court  refused  to  dismiss  the  writ, 
but  appointed  a  referee  to  take  the  testimony  of  the  wit- 
nesses, and  report  his  findings  of  fact  as  to  whether  Ju 
Toy  had  been  born  in  this  country  and  was  a  citizen. 
After  a  thorough  examination  the  referee  found,  as  a 
matter  of  fact,  that  Ju  Toy  was  a  citizen  of  the  United 
States,  and  this  decision  was  confirmed  by  the  District 
Court. 

An  appeal  was  taken  from  this  decision  to  the  Circuit 
>  United  States  v.  Sing  Tuck,  194U.  S.,  i6i. 


USURPATION    IN   ADMINISTRATIVE   LAW      349 

Court  of  the  United  States,  and  the  Court,  being  divided 
as  to  the  correctness  of  the  decision,  certified  interroga- 
tories to  the  United  States  Supreme  Court.  The  impor- 
tant question  certified  was  this :  "  Should  the  court  treat 
the  finding  and  action  of  such  executive  officers  "  (re- 
ferring to  the  Immigration  Commissioner  and  the  Sec- 
retary of  the  Treasury)  "  upon  the  question  of  citizen- 
ship and  other  questions  of  fact  as  having  been  made  by 
a  tribunal  authorized  to  decide  the  same  and  as  final  and 
conclusive,  unless  it  be  made  affirmatively  to  appear  that 
such  officers,  in  the  case  submitted  to  them,  abused  the 
discretion  vested  in  them,  or  in  some  other  way,  in 
hearing  and  determining  the  same  committed  prejudicial 
error."  The  United  States  Supreme  Court,  Mr.  Justice 
Holmes  writing  the  opinion,  found,  as  a  matter  of  law, 
that  it  mattered  not  whether  this  man  was  a  citizen  of  the 
United  States  or  not,  if  this  administrative  tribunal,  the 
Commissioners  of  Immigration,  decided  that  he  had  not 
been  born  in  the  United  States,  and  was  not  entitled  to 
enter  the  country,  and  the  Secretary  of  the  Treasury 
upon  the  evidence  taken  confirmed  that  finding  on  ap- 
peal, that  it  was  conclusive,  and  that  there  was  no 
redress  for  Ju  Toy.  Justices  Brewer,  Peckham,  and 
Day  dissented.  Justice  Brewer  writing  a  vigorous 
opinion. 

So  we  have  this  condition:  if  a  Chinaman  is  born 
in  the  United  States  and  unquestionably  is  a  citizen  of 
this  country,  and  goes  back  to  China  for  a  visit  and  re- 
turns, and  is  subjected  to  such  a  summary  trial  as  to 
citizenship  and  found  by  the  Immigration  Commis- 
sioner not  to  have  been  a  citizen,  and  the  papers  are 


35©  FEDERAL   USURPATION 

certified  to  the  Secretary  of  the  Treasury  who  deter- 
mines that  the  decision  of  the  Commissioner  is  correct, 
the  man  must  be  banished  from  the  country,  although 
he  is  a  citizen,  because  the  finding  of  the  Commission, 
under  such  circumstances,  is  conclusive  upon  him,  and 
no  court  has  the  power  to  interpose  and  protect  his 
liberties. 

Outside  of  Russia  and  Turkey  there  is  not  a  coun- 
try in  Europe  to-day  where  it  would  be  possible  for 
such  a  wrong  to  occur.  The  result  of  such  a  decision 
is  so  far-reaching  in  its  effects  as  to  imperil  the  liberty 
of  every  citizen  in  this  country.  If  the  United  States 
Supreme  Court  can  make  the  decisions  of  such  admin- 
istrative bodies  binding  upon  the  citizen,  under  rules 
and  regulations  where  it  is  practically  impossible  for 
him  to  protect  himself,  and  he  can  be  banished  from 
the  country  and  deprived  of  his  constitutional  rights  in 
this  manner,  his  liberty  is  not  worth  a  fig.  The  learned 
Justice  writing  this  opinion  says :  "  If,  for  the  purpose 
of  argument,  we  assume  that  the  Fifth  Amendment  ap- 
plies to  him,  and  that  to  deny  entrance  to  a  citizen  is 
to  deprive  him  of  liberty,  we  nevertheless  are  of  opinion 
that  with  regard  to  him  due  process  of  law  does  not 
require  a  judicial  trial."  ^  Due  process  of  law  before  a 
commission — without  an  opportunity  to  talk  with  any- 
one but  the  officers,  without  opportunity  to  procure  wit- 
nesses, without  chance  to  cross-examine  witnesses,  with- 
out any  counsel,  with  the  whole  matter  involving  a  right 
almost  as  dear  as  life  itself  disposed  of  summarily  by 
administrative  officials  in  a  country  where  the  Bill  of 
»  198  U.  S.,  263. 


USURPATION    IN   ADMINISTRATIVE   LAW      351 

Rights,  which  has  secured  to  EngHshmen  their  Hberties 
for  hundreds  of  years,  is  made  a  part  of  the  Constitu- 
tion? The  Hberty  of  the  citizen  is  indeed  precarious  if 
this  is  due  process  of  law.  Can  a  citizen  of  the  United 
States  be  excluded  from  his  country  except  in  punish- 
ment for  a  crime?  Dreyfus,  under  military  rule  in 
France,  was  tried  by  court-martial,  found  guilty,  and 
banished  to  solitary  confinement  in  a  distant  island  of 
the  Atlantic;  and  the  conditions  of  his  conviction 
showed  more  care  for  the  rights  of  a  citizen  than  ex- 
isted in  this  case.  The  injustice  done  Dreyfus  eventu- 
ally created  a  great  disturbance  even  in  France,  and  our 
people  and  all  other  liberty-loving  people  jeered  at  the 
French  for  their  disregard  of  the  liberties  of  a  citizen. 
Again,  Mr.  Justice  Holmes  says :  "  It  is  unnecessary 
to  repeat  the  often  quoted  remarks  of  Mr.  Justice  Cur- 
tis, speaking  for  the  whole  court  in  Murray's  Lessee  v. 
Hoboken  Land  and  Improvement  Co.,  18  How.,  272, 
280,  to  show  that  the  requirement  of  a  judicial  trial  does 
not  prevail  in  every  case."  Yet  the  case  cited  by  the 
learned  judge  was  a  mere  distress  warrant  issued  by 
the  solicitor  of  the  United  States  Treasury,  involving 
simply  the  rights  of  property,  and  the  court  in  that  case 
said :  "  To  avoid  misconstruction  upon  so  grave  a  sub- 
ject, we  think  it  proper  to  state  that  we  do  not  consider 
Congress  can  either  withdraw  from  judicial  cognizance 
any  matter  which,  from  its  nature,  is  the  subject  of  a 
suit  at  the  common  law,  or  in  equity,  or  admiralty ; 
nor,  on  the  other  hand,  can  it  bring  under  the  judicial 
power  a  matter  which,  from  its  nature,  is  not  a  subject 
for  judicial  determination."     Is  that  case  a  justification 


352  FEDERAL    USURPATION 

for  banishing  a  man  from  his  own  countr\'  to  avoid  hold- 
ing that  a  mere  administrative  tribunal's  decision  was 
not  conclusive.  Thus  Ju  Toy  was  compelled  to  suffer 
banishment,  and  was  not  permitted  to  be  relieved  by  a 
writ  of  habeas  corpus  even  after  a  referee  had  reported 
that  he  was  a  citizen  of  the  United  States. 

We  are  given  to  boasting  of  our  liberties.  We  pity 
the  Chinamen  subject  to  arbitrary  power.  The  Emperor 
of  China  is  said  to  have  the  right,  after  examination 
and  determination  that  one  of  his  subjects  has  com- 
mitted a  crime,  to  drive  bamboo  splinters  under  the  dis- 
respectful finger  nails  of  the  subject,  and  then  chop  off 
his  head  to  relieve  the  pain.  Such  exercise  of  power, 
however,  is  little  more  arbitrary  than  that  which  the 
United  States  Supreme  Court  approved  in  the  Ju  Toy 
case.  We  are  told  in  these  days  that  the  law  should 
be  administered  upon  considerations  "  of  what  is  expe- 
dient for  the  community  concerned,"  and  "  that  views  of 
public  policy  should  control  " ;  and  Mr.  Justice  Holmes, 
in  the  Youth's  Companion,  some  time  ago  said:  "A  sys- 
tem of  law  at  any  time  is  the  result  of  present  needs 
and  present  notions  and  of  what  is  wise  and  right  on 
the  one  hand,  and  on  the  other  of  rules  handed  down 
from  the  earliest  states  of  society  and  embodying  needs 
and  notions  which  more  or  less  have  passed  away." 
The  present  notions  of  men  as  to  what  is  wise  and  right 
is  not  law,  and  to  allow  it  to  subvert  the  constitutional 
guarantees  of  personal  liberty  endangers  every  man's 
freedom.  If  the  security  which  the  Constitution  has 
afforded  to  the  citizen  is  unnecessary,  and  the  first  eight 
amendments  embodv  "  needs  and  notions  which  more 


USURPATION    IN   ADMINISTRATIVE    LAW      353 

or  less  have  passed  away,"  then  the  people  should  be 
allowed  to  determine  that  question  and  not  the  courts. 
Amendment  to  the  Constitution  by  judicial  construction 
is  simply  usurpation,  and  is  especially  blameworthy  be- 
cause it  is  done  by  those  who  are  the  guardians  of  the 
people's  rights. 

The  truth  is  that  for  the  last  fifteen  years  momentous 
changes  have  been  going  on  of  which  the  people  take 
little  note.  During  this  period  the  rights  of  property, 
through  the  decisions  of  the  courts,  have  been  growing 
more  and  more  sacred,  while  the  liberties  of  the  citizen, 
secured  to  him  by  constitutional  guarantees,  have  been 
gradually  impaired.  Let  us  observe  an  illustration  of 
this  change.  In  January,  1891,  the  Appellate  Supreme 
Court  of  Massachusetts,  in  the  case  of  Miller  against 
Horton,^  Mr.  Justice  Holmes  writing  the  opinion,  held 
that  the  decision  of  the  Massachusetts  State  Commis- 
sioners on  Contagious  Diseases  among  Domestic  Ani- 
mals to  the  eflfect  that  the  plaintiff's  horse  was  affected 
by  glanders  and  directing  the  Board  of  Health  of  Reho- 
both  to  kill  the  horse,  would  not  protect  the  Board  of 
Health  in  so  doing  if  it  turned  out  upon  the  trial  that 
the  horse  was  not  affected  by  glanders,  and  that  the 
plaintiff  in  such  a  case  could  recover  damages  from  the 
members  of  the  board.  Now  a  man's  horse,  of  the  value 
of  perhaps  a  hundred  or  so  dollars,  was  involved  in  that 
decision.  A  man's  right  to  live  in  his  own  country  and 
the  country  of  his  birth  was  involved  in  the  Ju  Toy 
decision.  In  the  one  case  the  decision  of  the  Commis- 
sion on  Contagious  Diseases  is  held  not  conclusive.     In 

1  152  Mass.,  540. 
24 


354  FEDERAL    USURPATION 

the  other  case  the  decision  of  the  Secretary  of  the  Treas- 
ury is  held  conclusive,  although  the  referee  appointed 
by  the  District  Judge,  upon  oral  evidence  taken  with 
opportunity  for  cross-examination,  had  reported  that 
Ju  Toy  was  a  citizen,  and  his  report  had  been  confirmed. 
Ju  Toy  has  no  legal  remedy  for  this  wrong.  He  cannot 
sue  the  Secretary  of  the  Treasury,  and  his  action  being 
in  tort  is  not  cognizable  before  the  Court  of  Claims.^ 

It  was  the  rights  of  man  which  engaged  the  atten- 
tion of  the  political  thinkers  at  the  time  of  the  Dec- 
laration of  Independence.  It  is  the  rights  of  property 
which  absorb  the  attention  of  the  courts  to-day.  Power 
when  interpreted  by  the  one  who  is  to  exercise  the 
power  is  always  construed  with  great  latitude.  The 
Immigration  Commissioner  and  the  Secretary  of  the 
Treasury,  according  to  this  decision,  exercise  exclusive 
power,  and  the  tendency  is  to  increase  that  kind  of 
power.  Such  tribunals  generally  will  have  all  the  power 
that  they  choose  to  exercise.  As  expressed  in  the  orig- 
inal Constitution  of  Massachusetts,  "  A  frequent  recur- 
rence to  the  principles  of  the  Constitution  is  one  of  the 
things  absolutely  necessary  to  preserve  the  advantages 
of  liberty  and  to  maintain  a  free  government."  We 
look  upon  our  government  as  a  thing  established  and 
capable  of  maintaining  itself  without  any  personal 
efforts  on  the  part  of  the  citizen.  The  power  to  check, 
held  by  these  commissioners,  is  often  extended  into  a 
power  to  decree  and  to  enact.  Their  exercise  of  power 
is  purely  arbitrary  with  apparently  no  limitation.  If  the 
people  are  not  aroused  to  the  danger  of  the  exercise  of 
*  Goodnow,  Comparative  Administrative  Law,  pp.  1 56-161. 


USURPATION    IN   ADMINISTRATIVE   LAW      355 

such  power  it  will  not  be  many  years  before  their  hb- 
erties  are  subverted. 

Another  illustration  of  the  danger  of  government  by 
the  decisions  of  administrative  officers  is  found  in  the 
provision  allowing  the  stoppage  of  mail  by  fraud  orders. 
Now  it  is  undoubtedly  true  that  the  mails  are  frequently 
used  for  improper  purposes,  that  obscene  matter  is  sent 
through  them,  that  rascals  who  should  be  in  state  pris- 
ons employ  them  to  carry  out  their  nefarious  schemes 
for  defrauding  simple,  credulous  people,  and  that  all  the 
abuses  exist  which  Postmaster-General  Cortelyou  set 
forth  in  a  recent  review  article.^  Usurpations  of  power 
spring  into  existence  to  suppress  just  such  wrongs 
as  exist  in  the  Post-office  Department.  Government 
always  finds  in  the  existence  of  similar  abuses  to-day  ex- 
cuses for  usurpation.  President  Adams  and  Congress, 
in  the  passage  of  the  Alien  and  Sedition  laws,  were 
seeking  to  correct  real  abuses.  The  conduct  of  the 
French  immigrants,  who  had  taken  advantage  of  our 
gratitude  to  France,  was  such  as  to  be  worthy  of  pun- 
ishment. It  was  the  unconstitutional  means  of  secur- 
ing that  punishment  which  aroused  the  American  peo- 
ple, brought  about  the  defeat  of  the  Federalists,  and 
placed  in  power  the  Democratic  party  for  over  fifty 
years.  The  danger  of  arbitrary  power  is  always  greater 
where  the  purposes  for  which  it  is  exercised  are  good 
purposes,  because  the  great  majority  of  men  do  not  see 
the  danger  from  such  exercise  if  it  accomplishes  good 
results.  In  no  other  way  could  arbitrary  power  take  on 
a  form  more  popular  with  good  men  than  in  attempts 
'  North  American  Review,  April  19,  1907. 


356  FEDERAL   USURPATION 

to  suppress  obscene  literature,  or  letters  and  pamphlets 
intended  to  swindle  the  unwary.  Of  course  we  all  de- 
sire that  such  men  should  be  punished,  but  if  one  is 
acquainted  with  human  history  and  its  lessons  he  will 
never  wish  even  such  evils  suppressed  by  the  exercise 
of  arbitrary  power. 

In  1836  President  Jackson  recommended  to  Con- 
gress the  propriety  of  a  law  to  exclude  from  the  mails 
anti-slaver}-  literature  of  an  incendiary  character.  Mr. 
Calhoun,  condemning  in  the  strongest  terms  such  pub- 
lications, insisted  that  Congress  had  no  such  power  be- 
cause it  would  abridge  the  liberty  of  the  press.  Daniel 
Webster  acquiesced  in  this  opinion.  James  Buchanan, 
at  that  time  Senator  from  Pennsylvania,  supported  a  bill 
of  this  character,  on  the  ground  that  the  power  of  Con- 
gress to  carry  mails  necessarily  involved  the  right  to 
exclude  such  mails  as  it  saw  fit.  This  bill  was  voted 
down.  The  Post-office  Department  now  proscribes  the 
use  of  the  mails  for  the  carrjang  of  obscene  matter  and 
letters  or  pamphlets  intended  to  defraud :  and  also,  with- 
out any  provision  of  law  sustaining  its  action,  debars 
from  the  mails  pamphlets  criticising  the  acts  of  the 
national  government. 

Few  Americans  have  ever  given  so  much  time  to  the 
reading  and  studying  of  political  economy  and  other 
kindred  subjects,  upon  which  the  welfare  of  mankind  de- 
pends, as  the  late  Edward  Atkinson,  of  Boston.  For 
thirty  years  or  more  before  his  death  he  never  failed  to 
espouse  the  cause  of  what  he  believed  to  be  just,  with- 
out any  hope  of  reward  except  the  consciousness  of  hav- 
ing done  his  duty.    He  believed  that  he  saw  in  the  im- 


USURPATION    IN    ADMINISTRATIVE   LAW 


357 


perialistic  policy  of  President  McKinley's  administration 
a  great  danger  to  his  country,  and  when  Mr.  Atkinson 
was  satisfied  that  his  purpose  was  a  good  one  he  was 
absolutely  fearless  in  carrying  out  that  purpose.  The 
following  is  his  statement  of  what  occurred:  "  In  the 
latter  part  of  1898  I  privately  printed  a  pamphlet  con- 
taining two  treatises :  first,  '  The  Cost  of  a  National 
Crime,'  and  second,  '  The  Hell  of  War  and  its  Penal- 
ties.' ...  In  February,  1899,  the  President  had  sub- 
mitted to  the  dictates  of  the  conspirators  against  the  lib- 
erties of  the  Philippine  Islands,  and  had  committed 
'  criminal  aggression '  upon  them.  These  facts  were 
exposed  in  a  second  pamphlet  containing  a  third  treatise 
entitled  '  Criminal  Aggression — By  Whom  Committed  ?  ' 
...  I  then  learned  on  apparently  authentic  information 
that  the  volunteers  who  had  enlisted  for  the  War  with 
Spain  and  for  service  with  Cuba  had  been  sent  against 
their  will  and  against  their  convictions  of  right  to  the 
Philippine  Islands  and  were  there  held  in  service  after 
their  terms  of  enlistment  had  expired,  which  to  many  of 
them  was  abhorrent.  I  also  learned  on  apparently  good 
authority  that  telegraphic  messages  from  their  relatives 
in  this  country  were  not  permitted  to  reach  them.  This 
outrage  made  me  think  it  suitable  to  send  copies  of  my 
pamphlets  to  these  volunteers  who  were  held  against 
their  will  in  order  that  they  might  know  they  had  sup- 
port in  the  maintenance  of  their  rights  in  this  country. 
To  that  end  I  addressed  a  letter  to  the  Secretary  of  War 
asking  the  addresses  of  the  different  regiments,  inclos- 
ing copies  of  the  pamphlets  and  announcing  my  purpose 
to  send  them  to  these  troops.     I  did  not  discriminate 


358  FEDERAL   USURPATION 

between  the  volunteers  and  the  soldiers  of  the  regular 
army,  but  should  not  have  sent  to  the  latter  lest  the  sol- 
diers themselves  should  be  embarrassed  or  exposed  to 
hazard  by  their  acceptance.  After  waiting  a  sufficient 
time  for  reply  from  Secretary  Alger,  I  mailed  eight 
copies  as  a  test  to  Admiral  George  Dewey,  Professor 
Schurman,  Professor  Worcester,  General  H.  G.  Otis, 
General  Lawton,  General  Miller,  and  J.  F.  Bass,  cor- 
respondent of  Harper's  Weekly.  The  Secretary  of  War 
did  not  answer  my  letter,  but  apparently  he  and  some 
of  his  associates  were  alarmed  by  my  action  lest  the 
volunteers  held  against  their  will  should  demand  relief 
from  the  abhorrent  service  of  slaughtering  our  allies, 
and  at  the  instance  of  the  Postmaster-General  the  Post- 
master in  San  Francisco  violated  the  United  States  mail 
and  took  these  pamphlets  from  it  without  authority  of 
law  and  in  violation  of  the  rights  of  citizens." 

Now  there  can  be  no  doubt  that  there  was  nothing 
in  the  pamphlet  which  Mr.  Atkinson  sent  to  the  Secre- 
tary of  War,  and  which  he  afterwards  mailed  to  Admiral 
Dewey,  Professor  Schurman,  Professor  Worcester,  Gen- 
eral Otis,  and  the  others,  which  could  have  been  inju- 
rious to  them.  But  that  is  not  the  question.  He  had  the 
legal  right,  if  men  have  any  legal  rights  left  under 
imperial  government,  to  express  his  opinions  and  to 
send  them  through  the  mail  to  any  man.  and  yet  these 
pamphlets  were  taken  from  the  mail  and  destroyed  by 
the  order  of  the  Postmaster-General  without  the  slight- 
est authority,  in  law. 

Let  us  now  observe  the  method  through  which  a 
fraud  order  is  issued  by  the  Post-office  Department. 


USURPATION    IN    ADMINISTRATIVE   LAW      359 

Inspectors  of  the  Department  are  assigned  to  various 
sections  of  the  country,  with  the  duty  to  investigate  all 
cases  in  their  districts  in  which  it  is  alleged  that  the 
mails  are  being  used  in  violation  of  the  law.  When  a 
discovery  is  made  by  these  inspectors  (and  what  in- 
spector or  police  officer  ever  lived  that  could  not  dis- 
cover many  things  that  do  not  exist?),  in  the  language 
of  Mr.  Cortelyou :  "  When  the  character  of  the  scheme 
to  defraud  is  such  that  its  continued  operation,  during 
this  examination  and  consideration  of  the  charges, 
threatens  to  result  in  losses  to  the  public,  temporary 
orders  are  at  once  issued  to  the  Postmaster  simply  to 
withhold  the  mail  pending  the  inquiry."  ^  So  to  start 
with,  we  have  the  mail  of  one  of  the  patrons  of  the 
Post  Office,  possibly  engaged  in  a  large  business,  where 
the  withholding  of  his  mail,  even  for  a  few  days,  may 
result  in  the  practical  destruction  of  his  business,  having 
that  mail  stopped  without  any  hearing  and  without  any 
chance  of  explanation.  The  man  who  engages  in  lynch- 
ing adopts  the  theory  of  killing  the  suspected  person  and 
then  trying  him  afterwards.  The  Postmaster-General 
exercises  the  same  power  of  destroying  a  man's  busi- 
ness, and  then  giving  him  a  hearing  and  ascertaining 
whether  he  is  guilty. 

Now  having  held  up  the  man's  mail,  the  inspector 
reports  the  facts  to  the  Assistant  Attorney-General  for 
the  Post-office  Department  and,  as  Mr.  Cortelyou  says: 
"  If  these  facts  establish  a  prima  facie  case  of  fraud,  the 
person  or  concern  involved  is  at  once  notified  of  the 
pendency  and  the  nature  of  the  charges  brought,  and  is 
'  North  American  Review,  April  19,  1907,  p.  809. 


360  FEDERAL    USURPATION 

then  afforded  an  opportunity  to  appear  before  the  As- 
sistant Attorney-General  for  the  Post-office  Depart- 
ment, either  in  person  or  in  writing,  or  both,  making 
such  answers  and  statements  as  it  may  be  desired  to 
have  the  Department  consider  in  disposing  of  the  mat- 
ter." Now  the  victim  of  such  action  may  be  two  or 
three  thousand  miles  distant  from  Washington.  He  is 
given  an  opportunity  to  be  heard  by  the  Assistant 
Attorney-General,  who  has  already  passed  upon  the 
case.  The  examination  is  not  one  through  witnesses, 
with  examination  and  cross-examination,  but  is  in  fact 
a  mere  formal  examination,  and  the  decision  of  the 
Assistant  Attorney-General  confirmed  by  the  Postmas- 
ter-General is  absolute,  as  in  the  Ju  Toy  case,  upon  the 
rights  of  the  accused. 

The  right  to  do  business  is  a  legal  right.  Upon  this 
right  is  founded  most  of  the  injunctions  against  labor 
unions  and  laborers  engaged  in  a  strike.  Their  employ- 
ers are  canying  on  the  business  of  manufacturing  or 
some  other  commendable  enterprise.  Their  men  strike, 
they  attempt,  possibly  by  forcible  means,  to  prevent  other 
laboring  men  from  taking  their  places,  and  the  employer 
applies  to  the  court  for  an  injunction,  which  is  granted, 
because  the  right  to  do  business  is  a  property  right, 
and  the  action  of  his  late  employees  is  destructive  of 
that  right.  Now  apply  this  law  to  the  case  of  a  man 
whose  mail  is  stopped  by  a  fraud  order.  Such  an  order 
practically  destroys  his  business  even  before  a  hear- 
ing. It  will  avail  him  little  to  go  before  the  Assistant 
Attorney-General,  because  upon  the  evidence  of  the 
detective  he  has  alreadv  decided  the  case,  and  at  least 


USURPATION    IN    ADMINISTRATIVE   LAW      361 

before  the  hearing  could  be  had  the  man's  business  is 
destroyed. 

In  1905  a  man  by  the  name  of  E.  G.  Lewis  was  car- 
rying on  in  the  city  of  St.  Louis  a  business  known  as 
the  People's  United  States  Bank.  A  fraud  order  was 
issued  against  him,  and  proceedings  were  taken  in  the 
United  States  Court  for  the  purpose  of  appointing  a 
receiver  of  his  corporation,  and  a  receiver  was  appointed. 
The  fraud  order  was  issued  against  both  the  corporation 
and  Lewis.  All  letters  thereafter  addressed  to  him  per- 
sonally were  returned  with  the  usual  word  "  fraudu- 
lent "  stamped  thereon.  A  letter  from  his  wife,  from  his 
attorney,  from  any  close  friend  in  any  part  of  the  world, 
would  have  been  returned  with  the  word  "  fraudulent " 
stamped  upon  the  outside.  This  fraud  order  actually 
shut  him  ofif  from  any  intercourse  through  the  mails  with 
any  human  being  and  apparently  for  all  time. 

Mr.  Cortelyou  says  about  such  cases :  ^  "It  is  par- 
ticularly true,  too,  that  comparatively  little  direct  evi- 
dence can  be  brought  into  court  against  the  majority  of 
these  fraudulent  operators,"  and  he  tells  us  that  it  is  very 
difficult  to  find  evidence  which  will  insure  the  convic- 
tion of  such  operators.  We  are  also  assured  by  him  that 
there  is  much  justification  for  the  remark  recently  made 
that  "  the  Post-office  Department  of  the  United  States 
is  the  most  effective  agency  in  the  world  for  the  de- 
tection and  prevention  of  crime  and  the  apprehension  of 
the  criminal."-  Now  what  have  we?  The  most  ef- 
fective agency  in  the  world  for  the  detection  of  crime 

•  North  American  Review,  April  19,  1907,  p.  812. 
^  North  American  Review,  April  19,  1907,  p.  816. 


362  FEDERAL    USURPATION 

is  unable  to  obtain  little  evidence  against  those  it  ac- 
cuses, and  yet  it  has  issued  since  the  enactment  of  the 
present  legislation  2,400  fraud  orders.  I  am  credibly 
informed  that  in  the  case  of  Mr.  Lewis  and  his  People's 
United  States  Bank,  upon  liquidation  by  the  receiver,  it 
paid  one  hundred  cents  on  the  dollar  with  interest  in  full 
to  creditors,  together  with  dividends  to  the  stockholders 
of  eighty-five  per  cent. 

In  the  second  session  of  the  Fifty-ninth  Congress  a 
bill  was  introduced  into  the  House  of  Representatives 
providing  that  the  mail  addressed  to  the  person  or  firm 
against  whom  the  fraud  order  is  issued,  instead  of  being 
stamped  "  fraudulent "  and  being  returned  at  once  to  the 
senders,  should  be  held  in  the  Post  Office  for  fifteen  days 
before  being  sent  back.  In  that  period  the  business  con- 
cern was  permitted  to  institute  an  action  in  the  United 
States  Circuit  Court,  on  giving  a  bond  to  pay  the  entire 
costs  of  the  action  in  case  the  fraud  order  was  finally  held 
to  be  valid.  This  bill  passed  the  House  without  a  divi- 
sion, but  failed  to  pass  the  Senate.  When  the  wisdom  of 
the  proposed  act  was  being  discussed  before  the  Con- 
gressional Postal  Commission,  one  of  the  speakers  said: 
"  We  are  expected  to  live  up  to  rulings,  regulations,  and 
decisions  that  we  are  unable  to  find  and  never  heard  of. 
The  publisher  is  informed  by  mail  that  he  has  violated 
some  rule,  that  his  publications  can  be  no  longer  mailed 
at  a  second-class  rate,  but  the  rule  is  new  to  him.  His 
paper  is  held  up  until  he  can  find  out  what  is  the  matter. 
.  .  .  And  when  he  has  his  hearing  he  finds  out  that  it 
is  a  purely  arbitrary  affair,  surrounded  by  none  of  the 
safeguards  which  are  allowed  other  American  citizens 


USURPATION    IN    ADMINISTRATIVE   LAW      363 

who  are  contesting  for  their  right  to  do  business."  Of 
course  it  is  not  surrounded  by  any  of  the  safeguards 
allowed  other  American  citizens,  because  their  safeguards 
are  secured  to  them  by  laws  and  by  a  regular  judicial 
procedure.  On  the  other  hand,  administrative  tribunals, 
at  least  in  our  own  country,  have  always  been  arbitrary 
tribunals  depriving  the  citizen  of  his  property  and  his 
good  name  without  any  of  the  safeguards  prescribed  by 
law. 

In  another  case,  where  the  publication  had  been 
stopped  because  of  alleged  obscene  matter,  an  acquaint- 
ance of  the  publisher  sought  by  repeated  letters  to  dis- 
cover what  the  precise  matter  in  the  publication  was 
which  the  Post-office  Department  regarded  as  objection- 
able. Finally  the  only  statement  which  he  could  pro- 
cure from  the  officials  was  that  it  was  "  not  practicable 
for  the  department  to  attempt  to  point  out  the  offensive 
passages,"  and  they  practically  refused  to  give  any  in- 
formation as  to  what  matter  contained  in  the  publica- 
tions suppressed  was  regarded  by  them  as  offensive.  In 
common-law  courts  the  law  requires  the  facts  constitut- 
ing the  crime  to  be  specifically  stated  in  the  indictment 
so  that  the  accused  may  know  exactly  the  offense  with 
which  he  is  charged.  He  is  given  the  processes  of  the 
court  to  procure  his  witnesses,  and  must  be  confronted 
with  the  witnesses  against  him.  How  different  is  all  this 
from  administrative  tribunals. 

This  proceeding  on  the  part  of  the  Postmaster-Gen- 
eral is  quite  as  arbitrary  as  any  which  we  find  in  Russia, 
Prussia,  or  Austria.  The  Russian  censor  blots  out  the 
objectionable  parts  of  the  newspapers  and  permits  the 


364  FEDERAL    USURPATION 

rest  to  go  through  the  mails.  But  our  censor  suppresses 
the  whole  edition,  the  good  along  with  the  bad.  In  Aus- 
tria the  business  of  printing  a  newspaper  cannot  be  car- 
ried on  without  a  license  from  the  government,  and  every 
number  of  the  periodical  must  be  submitted  to  the  police 
before  publication,  so  it  may  be  confiscated  if  it  contains 
anything  contrary  to  law.  The  censor  is  said  frequently 
to  order  portions  of  the  columns  of  an  article  to  be 
stricken  out,  and  with  these  corrections  it  is  allowed  to 
go  forth.  All  arbitrary  governments  seek  to  control  the 
press.  And  with  full  knowledge  of  the  results  of  such 
methods  we  are  deliberately  adopting  them.  As  a  gen- 
eral rule  no  man's  liberty  to  print  or  publish  ought  to 
be  restrained  by  government  for  any  reason  short  of 
thereby  protecting  the  liberty  of  other  men.  So  impor- 
tant is  the  public  discussion  of  questions  that  all  assaults 
of  arbitrary  government  upon  liberty  have  first  appeared 
in  limitations  upon  the  press. 

Publications  entered  as  second-class  mail  matter  are 
said  to  be  subject  to  no  less  than  seven  distinct  rates. 
Such  discretion  reposed  in  the  officials  of  the  Post  Office 
is  wide  enough  to  allow  them  to  suppress  all  periodicals 
which  are  found  to  be  injurious  to  the  interests  that  they 
cherish.  Wilshire's  Magazine  was  a  few  years  ago  ex- 
cluded from  the  mail  by  the  Post-office  Department.  The 
editor  then  took  his  magazine  to  Canada,  where  he  had 
no  difficulty  in  securing  its  entrance  to  the  post  office. 
Three  years  later  a  New  York  printer  sought  to  contract 
for  the  publication  of  this  magazine,  and  to  procure  its 
reinstatement  in  the  mails  of  this  country  applied  to 
Senator  Piatt,  and  the  boss  easily  succeeded  in  securing 


USURPATION   IN   ADMINISTRATIVE   LAW      365 

at  once  what  years  of  labor  on  the  part  of  Wilshire  had 
failed  to  accomplish.  This  instance  shows  the  danger  of 
conferring  such  arbitrary  powers  upon  a  department  of 
the  government.  The  Star  Chamber,  which  was  abol- 
ished in  1 64 1,  had  as  one  of  its  special  functions  the 
right  to  try  the  offenses  of  the  press.  "  Press  law  has 
long  constituted,"  says  Mr.  Dicey,  "  and  still  continues 
to  a  certain  extent  a  special  department  of  French  legis- 
lation, and  press  offenses  have  been,  under  every  form 
of  government  which  has  existed  in  France,  a  more  or 
less  special  class  of  crimes."  ^  Under  Napoleon  Bona- 
parte no  one  could  print  a  paper  without  official  authori- 
zation, and  even  to-day  the  government  adopts  preven- 
tive measures  for  guarding  against  the  propagation  of 
unsound  or  dangerous  sentiments. 

Yet  even  in  France  the  arbitrary  power  exercised  by 
our  Post-office  Department  would  not  be  tolerated  for 
a  moment.  The  Gaulois,  a  Parisian  paper,  speaking  of 
President  Roosevelt's  action  in  excluding  from  the  mails 
newspapers  printing  the  details  of  the  Thaw  trial,  said: 
"  That  no  sovereign  in  Europe  unless  it  be  the  Czar  and 
the  Sultan  had  the  power  to  do  what  the  American 
executive  had  done."  The  Gil  Bias,  another  paper, 
commented  upon  the  same  matter,  saying:  "  Imagine 
President  Fallieres  interdicting  and  expurgating  such  an 
account."  If  publishers  must  run  the  gantlet  of  such 
secret  and  irresponsible  postal  supervision  the  freedom 
of  the  citizen  would  seem  to  be  greatly  impaired.  In 
England,  from  whence  we  drew  our  principles  of  English 
liberty  and  where  happily  they  still  continue,  the  gov- 
>  Dicey,  The  Law  of  the  Constitution,  p.  248. 


366  FEDERAL    USURPATION 

ernment  has  no  authority  to  seize  the  stock  of  a  pub- 
hsher  because  it  consists  of  books,  pamphlets,  and  papers 
which  in  the  opinion  of  the  government  contain  seditious 
or  dangerous  matter. 

There  are  many  other  instances  of  abuse  of  adminis- 
trative law.  One  of  these  is  found  in  the  McKinley  Act 
of  1890.  Discriminations  were  being  made  in  Germany 
against  American  meats.  The  act  provided  that  sugar, 
tea,  cofTee,  molasses,  hides,  and  other  articles  should  be 
admitted  free  of  duty.  In  order  to  arm  the  government 
with  means  of  retaliation.  Congress  conferred  the  power 
upon  the  President  that  whenever  he  should  be  satisfied 
that  unjust  discriminations  were  being  made  by  any 
foreign  state  against  the  importation  or  sale  of  any 
American  product,  he  might  by  proclamation  impose 
duties  upon  sugar,  tea,  coflfee,  molasses,  hides,  or  any 
other  articles  which,  by  the  terms  of  the  McKinley  Bill, 
were  admitted  free  from  the  country  discriminating 
against  us.  Thus  the  President  was  given  a  legislative 
power  belonging  to  the  popular  branch  of  the  legisla- 
ture, originally  granted  for  the  protection  of  the  people 
against  arbitrary  power.  The  United  States  Supreme 
Court,  however,  held  that  this  provision  of  the  act  im- 
posed administrative  powers  upon  the  President  and 
was  constitutional.  Justices  Lamar  and  Fuller  dissent- 
ing. Justice  Lamar  said :  "  It  goes  further  than  that  and 
deputes  to  the  President  the  power  to  suspend  another 
section  in  the  same  act  whenever  '  he  may  deem  the 
action  of  any  foreign  nation  producing  and  exporting 
the  articles  named  in  that  section  to  be  reciprocally  un- 
equal and  unreasonable ' ;  and  it  further  deputes  to  him 


USURPATION    IN   ADMINISTRATIVE   LAW       367 

the  power  to  continue  that  suspension  and  to  impose 
revenue  duties  on  the  articles  named  '  for  such  time  as 
he  may  deem  just.'  "  ^ 

On  March  9,  1897,  Congress  created  a  commission 
to  regulate  the  importation  of  teas,  and  prohibit  them, 
though  in  fact  pure,  when  below  the  standard  of  quality 
fixed  by  the  Secretary  of  the  Treasury.  That  tea  com- 
mission is  now  engaged  in  the  exercise  of  that  danger- 
ous power  of  requiring  the  reshipment  of  teas  which  do 
not  reach  the  quality  which  it  prescribes,  or,  in  case  they 
are  not  reshipped,  of  destroying  them.  This  act  also  has 
been  declared  constitutional. - 

There  is  no  such  thing  as  reviewing  the  action  of 
these  administrative  boards  according  to  the  decision 
just  cited.  A  recent  writer  on  administrative  law  ob- 
serves that  our  procedure  affords  even  less  protection 
from  the  arbitrary  action  of  these  boards  than  the 
French  law,  though  the  Bill  of  Rights  is  unknown  to  the 
French  Constitution.^  According  to  the  statement  of 
this  same  writer  state  courts  have  admitted  the  finality 
of  the  decisions  of  boards  of  health  in  respect  to  nui- 
sances, so  that  without  a  hearing  a  board  of  health,  in 
many  of  the  states,  has  been  declared  capable  of  deter- 
mining that  a  man's  property  is  a  nuisance  and  binding 
him  by  their  decision.  A  different  rule,  however,  pre- 
vails in  the  state  of  New  York.*    In  hundreds  and  even 


»  Field  V.  Clark,  143  U.  S.,  649. 
2  Buttfield  V.  Stranahan,  192  U.  S.,  470. 
^Political  Sc.  Quarterly,  Dec,  1906,  Bowman,  p.  615. 
«  Copcutt  V.  Board  of  Health  of  City  of  Yonkers,  140  N.  Y.,  i. 
See  also  p.  12. 


368  FEDERAL   USURPATION 

thousands  of  cases,  where  these  boards  are  acting  within 
the  scope  of  the  statute  creating  them  upon  the  subject 
matter  therein  fully  described,  their  decisions  are  final 
and  are  not  subject  to  review  in  the  courts.^  Mr. 
Wyman,  who  is  enthusiastically  favorable  to  these  com- 
missions, says,  however :  "  Things  are  done  in  admin- 
istrative adjudication  which  could  never  be  done  in 
judicial  processes.  Principles  are  violated  in  adminis- 
trative processes  which  are  fundamental  in  the  courts."  - 
Ex  parte  proceedings  seem  to  be  just  as  binding  as 
proceedings  upon  notice.  Even  these  boards  have  ex- 
tensive legislative  power.  So  when  a  fish  and  game 
commission  determine  that  the  fish  of  any  brook  or 
stream  of  the  commonwealth  are  of  sufficient  value  to 
warrant  the  prohibition  of  casting  sawdust  into  the 
stream  where  they  are  found,  they  may  by  an  order  in 
writing  prohibit  the  same  without  giving  the  owner  any 
hearing  upon  their  action.^  Although  the  executive, 
legislative,  and  judicial  departments  are  carefully  di- 
vided in  our  form  of  government,  still  the  legislative  de- 
partment can  confer  executive  duties  upon  these  com- 
missions and  their  decisions  therein  are  final.*  Judge 
Jackson,  many  years  ago  in  the  Kentucky  and  Indiana 

•  Wyman,  Administrative  Law,  §§  1 12-136;  Miller  v.  Raum, 
135  U.  S.,  200;  Oil  Company  v.  Hitchcock,  190  U.  S.,  316. 

2  Wyman,  Administrative  Law,  §  119. 

3  Wyman,  Administrative  Law,  §  121,  note;  Salem  v.  East- 
em  R'y  Co.,  98  Mass.,  431,  443 ;  Nelson  v.  State  Board  of  Health, 
186  Mass.,  330,  333. 

*  Harvard  Law  Review,  vol.  xx,  p.  121;  Wyman,  Adminis- 
trative Law,  §  121;  in  re  Kollock,  165  U.  S.,  526;  Wyman, 
Administrative  Law,  §  133,  Note  103  with  Cases. 


USURPATION    IN   ADMINISTRATIVE   LAW       369 

Bridge  case,  described  these  commissions  as  the  referee 
of  each  and  every  Circuit  Court  of  the  United  States.^ 
And  it  has  been  held  that  one  of  them  may  institute  pro- 
ceedings in  the  courts  and  become  prosecutor  and  judge 
in  the  same  case. 

Congress  voted,  in  1898,  the  payment  over  to  the 
President  of  $50,000,000,  and  under  the  power  of  ad- 
ministrative law  he  expended  it  in  his  own  discretion 
without  any  check  whatever.  Under  this  power  of  ad- 
ministration in  1899,  the  Secretary  of  War  sent  troops 
into  the  state  of  Idaho,  without  even  the  petition  of  the 
state  authorities ;  martial  law  was  declared  by  the  War 
Department,  the  writ  of  habeas  corpus  was  suspended, 
not  by  the  state  authorities  but  by  the  general  in  com- 
mand of  the  army,  and  without  any  warrant  whatever 
he  arrested  hundreds  of  men  and  carried  on  govern- 
ment by  his  own  will.  Mr.  Root,  at  a  New  York  Uni- 
versity Law  School  Banquet,  described  administrative 
law  under  his  direction,  as  Secretary  of  War,  as  follows : 
"  It  has  been  my  province  during  the  last  four  years 
and  a  half  to  deal  with  arbitrary  government.  It  has 
been  necessary  for  me  not  only  to  make  laws  and  pro- 
nounce judgment  without  any  occasion  for  discussion — 
except  in  as  far  as  I  would  choose  to  weigh  the  ques- 
tions involved  in  my  own  mind — aflfecting  ten  million 
people.  And  not  only  to  make  laws  and  pronounce 
judgment,  but  to  execute  judgment  with  overwhelm- 
ing force  and  great  swiftness."  Under  this  admin- 
istrative law  the  Philippine  Commission  on  June  i, 
1903,   by    Section   6   of   an   act    numbered   781    of   the 

*  Harvard  Law  Review,  vol.  xx,  pp.  123,  124. 
25 


370  FEDERAL    USURPATION 

Philippine  Commission,  provided  for  the  very  same 
kind  of  reconcent  ration  of  the  native  population 
for  which  we  drove  Weyler  and  his  Spaniards  out 
of  Cuba.^ 

Under  administrative  law  the  Secretary  of  the  In- 
terior, by  executive  order  in  1904,  decreed  that  all  per- 
sons who  had  served  in  the  army  or  navy  of  the  United 
States  and  had  reached  the  age  of  sixty-two  years, 
should  be  presumed  to  have  incurred  such  disabilities 
as  to  entitle  them  to  receive  pensions  under  the  Act 
of  Congress  approved  June  27,  1890.  It  is  under  this 
power  that  the  Interstate  Commerce  Commission  is 
about  to  impose  rates  of  traffic  upon  200,000  miles  of 
railway  in  the  United  States.  It  is  under  this  admin- 
istrative power  that  Secretary  Shaw  of  the  Treasury 
suspended  the  duties  upon  importations  of  coal ;  ac- 
cepted, as  believed  by  many,  without  legal  authority, 
other  securities  than  national  bonds  to  secure  the  issues 
of  national  bank  notes;  deposited  the  surplus  of  the 
Treasury  with  national  banks  in  the  amount  of  many 
millions  of  dollars,  and  used  all  the  powers  at  his  dis- 
posal to  protect  and  further  the  interests  of  these  na- 
tional banks.  It  is  under  this  administrative  power  that 
in  all  the  states  of  the  Union  hundreds  of  commissions 
are  taking  the  control  by  license  and  otherwise  of  the 
affairs  of  men,  many  of  which  are  not  public  in  their 
nature. 

In  the  case  of  the  People  ex  rel  Lodes  against  the 
Department  of  Health  of  New  York  City,  Mr.  Justice 

^  North  American  Review,  Jan.  18,  1907;  Blount,  Philippine 
Independence,  p.  145. 


USURPATION    IN   ADMINISTRATIVE   LAW      371 

Gaynor,  of  the  Supreme  Court  of  New  York,  speaking 
of  this  condition,  says :  ^  "  Those  who  meditate  a  re- 
course to  arbitrary  power  for  a  good  purpose  should 
pause  to  consider  the  consequences,  for  it  is  a  vice 
which  brings  in  its  train  all  the  vices  and  especially  the 
detestable  vices  of  official  extortion  and  blackmail. 
Good  men  in  good  times  should  beware  of  setting  bad 
precedents  for  bad  men  in  bad  times.  The  sale  of  im- 
pure milk  or  other  food  is  bad,  but  far  worse,  and 
fraught  with  far  greater  evils,  would  be  the  growing 
exercise  by  executive  officials  of  powers  not  conferred 
on  them  by  law.  If  they  were  suffered  to  require  li- 
censes for  the  ordinary  occupations  of  life,  and  refuse 
them  to  whom  they  willed,  how  long  would  it  be  before 
such  licenses  would  be  sold  for  money  or  for  political 
favor  or  partisan  fidelity  ?  "  Commissions  of  this  kind, 
censors  of  all  kinds,  restrictive  government,  multiplica- 
tion of  penal  laws,  all  these  methods  have  been  the 
methods  of  arbitrary  governments.  There  is  not  a  step 
in  the  decay  of  the  Roman  Republic  and  of  the  Em- 
pire which  is  not  marked  by  a  large  amount  of  just  such 
legislation  as  I  have  been  describing.  The  endless  repe- 
tition of  legal  commands  is  the  unerring  sign  of  impo- 
tence and  decadence. 

It  is  important  to  appreciate  whither  this  admin- 
istrative government  is  leading.  It  differs  materially 
from  administrative  government  in  France  and  other 
European  countries.  In  all  these  countries  all  relations 
between  administrative  officers  and  the  citizens,  grow- 
ing out  of  the  official  duties  of  those  officers,  are  regu- 
'117  App.  Div.,  865. 


372  FEDERAL    USURPATION 

lated  entirely  in  administrative  courts.  The  citizen  of 
France  is  forbade  from  the  bringing  of  any  action 
against  any  administrative  officer  for  an  official  act 
without  the  consent  of  the  French  Council  of  State. 
This  does  not  apply  to  acts  committed  by  officials  not 
in  the  exercise  of  their  authority,  as,  for  instance,  where 
the  act  is  a  personal  fault  or  a  malicious  use  of  lawful 
powers.  But  for  all  other  administrative  acts  of  any 
name  or  nature  the  citizen  has  no  recourse  against  the 
official  committing  the  wrongful  act  under  claim  of  au- 
thority, except  in  an  administrative  court,  where  there 
is  scarcely  hope  of  redress.^  These  administrative 
courts  are  conducted  by  administrative  officials  with  rules 
of  procedure  peculiar  to  themselves,  and  with  no  provi- 
sion of  trial  by  jury.  Will  administrative  law  bring  us 
to  the  same  unfortunate  condition? 

In  Prussia  the  only  remedy  of  the  citizen  against  an 
official  for  a  wrong,  in  the  supposed  execution  of  his 
duty,  is  to  appeal  to  the  authority  who  supervises  the 
action  of  that  official,  or  to  bring  an  action  before  the 
administrative  courts  against  the  official  or  officials  whose 
conduct  is  challenged.^  By  reason  of  this  fact  a  con- 
siderable part  of  all  the  litigation  in  Continental  Europe 
is  carried  on  before  administrative  courts  dependent  upon 
the  head  of  the  state,^  and  therefore  likely  to  be  safe 
guardians  of  the  rights  of  officials.  The  administrative 
courts  in  European  countries  resent  with  indignation  any 

»  Dicey,  The  Law  of  the  Constitution,  ch.  xii. 
*  Ashley,  Local  and  Central  Government,  pp.  302,  303. 
'  Lowell,  Governments  and  Parties  in  Cont.  Europe,  vol.  ii, 
pp.  83,  195. 


USURPATION    IN    ADMINISTRATIVE    LAW       373 

attempt  on  the  part  of  the  regular  law  courts  to  interfere 
with  their  jurisdiction  over  administrative  officials. 

There  are  no  strictly  technical  administrative  courts 
in  this  country  or  in  England.  The  public  official  is 
liable  before  our  common-law  courts  for  all  his  torts  and 
wrongs,  even  though  claiming  to  have  performed  them 
in  his  official  capacity.  If  a  board  of  health  wrongfully 
has  declared  the  property  of  a  citizen  to  be  a  nuisance 
and  destroyed  it,  they  are  liable  in  most  of  the  states,  at 
least  for  damages,  in  case  it  was  not  a  nuisance.  If  they 
revoke  the  license  of  a  milk  dealer,  without  a  hearing, 
and  for  a  cause  not  prescribed  by  the  laws  or  their  writ- 
ten regulations,  they  are  liable,  and  an  equity  court  will 
enjoin  their  action.^  It  may  be  true  that  in  some  cases 
the  official  can  protect  himself  by  a  process  which  is 
regular  upon  its  face,  but  in  such  a  case  his  superior  who 
issues  the  process,  if  void,  is  liable. 

These  commissioners  will  come,  by  and  by,  to  believe 
that  extraordinary  powers  belong  to  them ;  that  they  can 
prohibit  a  legitimate  business  by  refusing  to  license  it, 
entirely  overlooking  the  fact  that  they  are  given  the 
power  to  regulate  business  and  not  to  prohibit  it.  The 
President,  a  few  days  ago,  took  away  the  license  of  a 
Mississippi  steamboat  pilot.  It  will  not  be  many  years, 
if  existing  conditions  prevail,  before  the  national  govern- 
ment, through  commissions,  will  be  licensing  every  loco- 
motive engineer  and  conductor  engaged  in  interstate 
commerce,  and  will  be  licensing  every  state  corporation 
doing  an  interstate  business.    These  licenses  will  be  rev- 

'  People  ex  rel  Lodes  v.  Department  of  Health  of  the  State  of 
New  York,  117  App.  Div.,  856. 


374  FEDERAL   USURPATION 

ocable  at  the  will  of  the  President  or  the  head  of  the 
Department  of  Commerce,  and  hundreds  of  thousands, 
if  not  millions,  of  men,  and  all  of  the  corporate  interests 
of  the  country,  will  be  at  the  mercy  of  the  national  gov- 
ernment. So  long  as  these  commissions  are  allowed  to 
exercise  judicial  and  legislative  powers,  without  the  right 
of  review  on  the  part  of  the  regular  courts,  the  citizen's 
rights  are  in  danger.  There  is  to-day  no  menace  to  his 
rights  so  great  as  administrative  decisions.  Our  English 
ancestors  three  centuries  ago  escaped  from  the  adminis- 
trative courts  of  England.  Let  us  beware  of  the  danger 
of  returning  in  our  day  to  that  kind  of  arbitrary  gov- 
ernment. 


XI 


HOW   TO    RESTORE    THE    DEMOCRATIC 
REPUBLIC 


"To  bid  the  political  machines  to  do  away  with  corruption  in 
order  to  save  the  government  is  to  bid  them  give  up  that  which 
to  them  makes  government  worth  saving." 

Anon. 


"No  system  of  government  .  .  .  can  ever  pretend  to  ac- 
complish its  legitimate  end  apart  from  the  personal  character  of 
the  people,  or  to  supersede  the  necessity  of  individual  virtue 
and  vigor." 

Grote. 


"The  durability  of  liberty  owes  its  greatest  security  to  the 
constant  suspicion  of  the  people." 

Hallam. 


"Nothing,  indeed,  will  appear  more  certain,  on  any  tolerable 
consideration  of  this  matter,  than  that  every  sort  of  government 
ought  to  have  its  administration  correspondent  to  its  legislature." 

Burke. 


"The  most  far-seeing  statesman  will  not  so  trust  his  own 
misgivings  as  to  refuse  to  hope  for  the  regeneration  of  the  institu- 
tions into  which  he  is  bom.  He  will  determine  that  justice  shall 
be  done.  .  .  .  Constitutions  are  never  overthrown  till  they  have 

pronounced  sentence  upon  themselves." 

Froude. 


CHAPTER   XI 

HOW    TO   RESTORE   THE   DEMOCRATIC    REPUBLIC 

No  people  in  history  ever  relied  so  implicitly  upon  the 
making  of  laws,  the  creation  of  constitutions,  and  the  pro- 
tection of  life  and  property  through  courts  as  the  Ameri- 
can people.  Our  people  are  really  beside  themselves  in 
their  belief  in  the  efficiency  of  law  for  the  correction  of 
evils.  Congress  yearly  passes  three  or  four  thousand 
statutes,  and  the  state  legislatures  add  about  twenty-five 
thousand  pages  more.  We  permit  the  political  bosses 
to  select  for  our  suffrages  members  of  assembly,  sena- 
tors, and  judges ;  then  we  make  our  choice  between  their 
candidates,  go  home  from  the  polls  and  get  so  busy  in 
our  own  affairs  that  no  one  is  left  to  watch  the  men 
elected.  It  is  a  fundamental  error,  in  our  thinking,  that 
evils  admit  of  immediate  and  radical  remedies  through 
legislation.  "If  you  would  but  do  this  or  do  that,"  we 
say,  "the  mischief  will  be  prevented."  No  set  of  laws, 
however  good,  will  bring  good  government  unless  hon- 
estly and  intelligently  administered,  nor  unless  those  re- 
sponsible for  such  administration  are  held  strictly  ac- 
countable at  all  times  for  public  abuses.  The  sore  spot 
in  our  government  is  right  here,  do  the  people  really 
wish  good  government?  Is  there  sufficient  public  virtue 
among  our  citizens  to  demand  and  appreciate  good  gov- 

377 


378  FEDERAL   USURPATION 

ernment?  If  the  legislature  passes  a  bad  law  you  can 
repeal  it,  if  the  Constitution  is  defective  you  can  amend 
it,  but  if  the  "  people  themselves  are  lacking  in  public 
spirit  there  is  no  remedy." 

There  is  no  such  thing  as  remedying  existing  abuses, 
or  amending  our  Constitution  so  as  to  bring  it  into  har- 
mony with  our  times  and  requirements,  unless  the  people 
really  believe  that  conditions  are  dangerous.  The  only 
way  to  keep  government  free  is  for  each  individual  to 
presume  that  government  is  in  the  wrong,  and  that  pre- 
sumption will  keep  it  upon  its  good  behavior.  We  must 
become  disgusted  with  the  present  conditions  and  desir- 
ous for  something  better  before  a  great  change  will  take 
place.  We  have  been  fed  so  long  on  comparisons  of  our 
own  exalted  condition  with  that  of  the  oppressions  of 
European  people,  we  have  been  educated  to  such  rever- 
ence for  our  Constitution,  that  we  have  arrived  at  that 
condition  of  sanguine  optimism  where  the  worst  phases 
of  our  life  are  believed  by  many  people  to  be  the  evidence 
of  our  superiority.  When  a  people  settle  down  in  serene 
confidence  that  law  and  social  justice,  the  preservation  of 
the  state,  and  all  such  matters  have  been  provided  for 
them  for  all  time  through  a  constitution,  and  that  all  they 
have  to  do  is  to  ride  in  the  constitutional  ship  and  devote 
their  entire  attention  to  private  business,  they  need  to 
be  shocked  into  the  consciousness  that  their  liberties  are 
in  danger,  and  that  their  very  optimism  is  a  temptation 
to  politicians  to  abuse  their  confidence. 

The  political  partisan  is  never  a  critic.  He  and  his 
associates  are  ever  engaged  in  covering  the  sores  of  their 
party.    What  the  people  need  is  a  large  body  of  fearless 


HOW   TO    RESTORE    DEMOCRATIC    REPUBLIC    379 

men  who  ask  no  favors  of  government,  and  who  are 
wilHng  to  stand  up  and  ask  disagreeable  questions,  and 
utter  uncomfortable  truths,  and  lay  their  fingers  upon 
abuses,  and  attack  the  men  behind  those  abuses.  A  peo- 
ple may  prefer  free  government  and  still  be  unequal  to 
the  exertions  necessary  to  preserve  it.  Down  deep  in  the 
nature  of  the  American  man  is  the  quality  of  always  try- 
ing to  avoid  trouble  and  save  time.  If  an  American  and 
an  Englishman  are  traveling  together  in  Europe,  and  a 
cabman  or  guide  or  hotel  keeper  attempts  to  extort  money 
from  them,  the  Englishman  will  say,  "  I  will  not  pay  it ; 
I  will  fight  it  out  with  him."  But  the  American  will 
counsel,  "  If  we  try  to  fight  it  out  with  him  it  will  keep 
us  here  a  week,  and  we  cannot  afford  that;  let  us  pay 
him."  The  one  method  destroys  abuses  at  whatever  cost 
when  they  first  appear,  the  other  permits  evils  to  grow 
and  grow  until  they  become  a  part  of  the  very  life  of 
government,  and  must  be  cut  out  at  last,  if  at  all,  from 
the  roots. 

Goldwin  Smith  tells  us  ^  that  as  the  body  of  William 
the  Conqueror  was  being  lowered  into  the  grave,  Ascelin 
Fitzarthur,  a  private  citizen,  stood  forth  and  forbade  the 
burial,  saying  that  the  ground  was  his,  and  that  he  had 
been  wrongfully  deprived  of  it.  He  was  promised  the 
full  value  of  his  land  and  allowed  the  burial  to  go  on. 
Here  we  have  that  spirit  of  resistance  against  the  in- 
fringement of  one's  rights  which  has  preserved  the  right 
of  property  and  liberty  among  men.  There  is  no  such 
thing  as  an  individual  securing  his  rights  unless  he  is 
willing  to  insist  upon  them  at  all  times ;  and  there  is  no 
»  The  United  Kingdom,  vol.  i,  p.  41. 


380  FEDERAL    USURPATION 

such  thing  as  a  people  securing  their  rights  unless  they 
are  ready  to  fight  for  them  at  all  times.  When  you  can 
slap  a  man  in  the  face  and  he  shows  no  spark  of  resent- 
ment, you  can  safely  shelve  that  man  as  an  unfit  citizen; 
and  when  a  man  can  see  a  cruel  injustice  done  in  a  law 
court  or  in  society  and  not  cry  out  against  it,  he  is  al- 
ways an  unfit  citizen.  "  A  wise  man,"  said  George  Eliot, 
"more  than  two  thousand  years  ago,  when  asked  what 
would  most  tend  to  lessen  injustice,  said  that  every  by- 
stander should  feel  as  indignant  at  a  wrong  as  if  he  him- 
self were  the  sufferer." 

The  all-pervasive  cause  of  present  conditions  is  found 
in  our  maddening  struggle  for  wealth  and  the  com- 
mercial spirit  of  our  countrymen.  In  1883  Andrew  D. 
White,  in  his  noble  address.  The  Message  of  the  Nine- 
teenth Century  to  the  Twentieth,  delivered  at  the  re- 
union of  his  class  at  New  Hiven,  put  his  finger  upon 
this  danger  and  advised  the  development  of  other  great 
elements  of  civilization  to  hold  the  commercial  spirit 
in  check,  saying :  "  The  greatest  work  which  the  com- 
ing century  has  to  do  in  this  country,  is  to  build  up  an 
aristocracy  of  thought  and  feeling  which  shall  hold  its 
own  against  the  aristocracy  of  mercantilism.  I  would 
have  more  and  more  the  appeal  made  to  every  young 
man  who  feels  within  him  the  ability  to  do  good  or  great 
things  in  any  of  these  higher  fields,  to  devote  his  powers 
to  them  as  a  sacred  duty,  no  matter  how  strongly  the 
mercantile  or  business  spirit  may  draw  him.  I  would 
have  the  idea  preached  early  and  late.  .  .  ."  The  evils 
of  commercialism,  comparatively  slight  when  Mr.  White 
said  these  words,  have  been  increasing  with  maddening 


HOW   TO   RESTORE   DEMOCRATIC   REPUBLIC     381 

speed  ever  since.  Failure  to  make  a  fortune  is  the  un- 
pardonable sin  of  our  country.  Wealth  makes  the  man ; 
no  person  is  accounted  either  great  or  honored  with- 
out it. 

History  presents  no  country  where  the  people  gave 
themselves  up  to  such  commercialism  that  preserved  its 
liberties  for  any  considerable  period  of  time.  The  reason 
for  this  is  that  when  any  such  consuming  passion  takes 
possession  of  a  people,  it  absorbs  all  other  powers  and 
grows  by  what  it  feeds  upon,  until  it  eats  out  the  human- 
izing virtues  and  liberty-loving  virtues  of  men.  Art, 
literature,  culture,  religion,  each  feels  its  pressure  and 
finally  succumbs  to  its  dominating  spirit.  The  material- 
istic spirit  of  our  day  is  atrophying  the  minds,  the  con- 
sciences, and  the  imaginations  of  men.  The  spirit  of 
poetry,  the  beauties  of  mythology,  and  the  delights  of 
art  are  all  sent  to  the  rear  by  this  triumphant  force.  We 
have  to  go  back  fifty  years  in  our  history  to  reach  the 
time  when  the  great  body  of  our  citizens  admired  poets, 
orators,  philosophers,  novelists,  and  historians.  Clay, 
Webster,  or  Calhoun,  in  the  United  States  Senate,  were 
the  delight  of  the  people.  Emerson,  Bryant,  Lowell, 
Holmes,  Whittier,  had  their  hundreds  of  thousands  of 
admirers.  Then  the  millionaire  appeared  upon  the  scene, 
scattering  his  money  for  charity,  purchasing  newspapers, 
furnishing  campaign  funds,  buying  legislators,  making 
all  political  life  a  business,  and  all  was  changed. 

Xerxes,  after  the  battle  of  Thermopylae,  while  mov- 
ing his  troops  to  the  south,  was  assured  by  Mardonius, 
the  Greek,  that  the  Peloponnesians,  even  at  that  moment, 
were  occupied  with  the  celebration  of  the  Olympic  games. 


382  FEDERAL   USURPATION 

"  What  prize  does  the  victor  receive  ?  "  he  asked.  Upon 
the  reply  that  the  prize  was  nothing  more  than  a  wreath 
of  the  wild  olive,  a  kinsman  of  Xerxes,  in  his  presence,  is 
said  to  have  exclaimed,  "  Heavens !  Mardonius,  what 
manner  of  men  are  these  against  whom  thou  hast  brought 
us  to  fight!  Men  who  contend  not  for  money  but  for 
honor !  "  To-day  men  do  not  contend  for  honor,  because 
if  they  attain  honor  without  wealth  they  are  of  little  ac- 
count. The  steel  king,  the  oil  king,  the  railway  king, 
the  cattle  king,  the  mining  king,  attract  and  absorb  the 
attention  of  the  people.  The  newspaper  columns  are 
filled  with  their  doings  because  we  reverence  wealth,  and 
hence  reverence  the  men  who  have  it. 

If  we  wish  to  check  the  power  of  organized  and  un- 
scrupulous wealth  over  government,  one  way  will  be  to 
change  our  own  personal  standards  of  right  and  wrong, 
and  our  social  customs,  and  through  those  to  affect  pub- 
lic opinion.  This  idea  was  admirably  stated  by  John 
Sharp  Williams  in  the  House  of  Representatives  in  1905, 
when  he  said :  "  Public  opinion  in  administrative  and 
financial  circles  is  a  man's  environment:  and  the  trouble 
is  with  public  opinion  itself.  The  trouble  is  with  the 
American  people.  Down  deep  at  the  bottom  of  our 
hearts,  God  help  us,  nearly  all  of  us  somewhat  respect 
and  envy  the  fellow  who  has  '  financed '  five  hundred 
thousand  dollars.  We  are  like  Thackeray's  snob  was 
about  the  nobility  when  he  exclaimed,  '  I  dearly  love 
a  lord.'  ...  if  every  Member  of  this  House  to-night 
should  receive  an  invitation  to  dine  with  McCurdy  or 
with  McCall,  nine  tenths  of  you  would  cynically  say, 
*  Is  the  wine  good  ?     Does  he  roast  his  ducks  well  ? ' 


HOW   TO    RESTORE    DEMOCRATIC    REPUBLIC    383 

And  you  would  go,  the  most  of  you."  We  rail  against 
the  predatory  trusts,  but  we  envy  the  wealth  of  the 
men  who  are  in  the  predatory  trusts.  We  deal  with 
them,  flatter  them,  and  refuse  to  treat  their  crimes  as 
we  treat  those  of  the  poor.  Because  we  have  made 
money  our  god  we  do  not  look  forward  to  having  our 
sons  attain  fame  for  learning  or  eloquence,  but  we  all 
hope  to  see  them  secure  wealth.  "  No  home,"  says 
Mr.  Lloyd  in  his  Wealth  Against  Commonwealth,  "  is 
so  low  that  it  may  not  hope  that  out  of  its  fledglings 
one  may  grow  the  hooked  claw  that  will  make  him  a 
millionaire." 

So  thoroughly  has  commercialism  tal^en  possession  of 
our  people  that  we  do  not  appreciate  the  service  of  those 
who  labor  for  the  public  weal  with  no  expectation  of 
receiving  benefits  therefrom.  The  ordinary  legislative 
committee  is  a  representative  of  public  opinion,  and  the 
members  of  it  will  always  listen  with  more  attention  to 
a  man  of  business,  no  matter  how  disreputable,  than  it 
will  to  a  citizen  who  is  seeking  in  no  manner  to  further 
his  own  interests.  We  worship  business  and  business 
success,  and  our  whole  theory  of  legislation  is  to  give 
some  man  or  some  body  of  men,  policemen,  firemen, 
labor-union  organizations,  trusts,  railroads,  some  ad- 
vantage through  laws.  Our  legislators  care  little  about 
the  great  body  of  the  people,  because  they  are  unorgan- 
ized. They  care  l.'ttle  about  the  words  of  the  man  who 
represents  unorganized  public  opinion.  Legislation  is 
directed  to  the  security  of  private  property  and  not  to 
the  protection  of  personal  rights  and  liberties.  The  at- 
torney who   represents   a  great  trust   or  corporation   is 


384  FEDERAL    USURPATION 

looked  upon  by  a  legislative  committee  as  a  great  man, 
while  the  man  who  is  giving  his  whole  life  to  the  study 
of  history  and  of  political  problems  and  policies,  if  he 
represents  no  trust  or  organized  party,  is  considered  of 
little  account. 

We  wonder  why  our  age  does  not  produce  such 
statesmen  and  orators  as  we  had  sixty  or  seventy  years 
ago.  It  would  produce  them  if  they  were  appreciated. 
In  the  age  of  Pericles,  when  all  Athenian  statesmen  met 
in  public  assembly  and  decided  public  affairs,  great  men 
came  to  the  front.  Pericles,  in  his  famous  funeral  ora- 
tion over  the  three  hundred  who  died  at  Thermopylae, 
according  to  Thucydides,  gave  the  reason  for  this.  He 
said :  "  We  call  the  man  who  cares  not  for  the  public 
weal  a  worthless  nuisance,  not  merely  an  inoffensive 
citizen  .  .  .  for  all  citizens  take  a  share  of  the  public 
burdens  and  are  free  to  urge  their  opinions  on  public 
affairs."  An  age  of  liberty  is  always  an  age  of  appre- 
ciation of  high  public  service,  and  of  scrupulous  conduct 
on  the  part  of  public  men. 

After  the  Revolutionary  War  Washington  turned  his 
attention  to  improving  the  intercourse  between  the  dif- 
ferent parts  of  the  State  of  Virginia,  and  especially  be- 
tween Virginia,  Maryland,  and  the  West.  "  In  1785," 
says  John  Fiske,  "  he  became  the  President  of  a  company 
for  extending  the  navigation  of  the  Potomac  and  James 
Rivers,  and  the  legislature  of  \'irginia  passed  an  act  vest- 
ing him  with  one  hundred  and  fifty  shares  in  the  stock 
of  the  company,  in  order  to  testify  to  their  *  sense  of  his 
unexampled  merits,'  but  Washington  refused  the  testi- 
monial, and  declined  to  take  any  pay  for  his  services,  be- 


HOW   TO    RESTORE   DEMOCRATIC   REPUBLIC    385 

cause  he  wished  to  arouse  the  people  to  the  political  im- 
portance of  the  undertaking,  and  he  felt  that  his  words 
would  have  more  weight  if  he  were  known  to  have  no 
selfish  interest  in  it."  What  a  noble  example  for  some 
of  our  public  men  to-day  who  do  nothing  unless  there 
is  something  in  it  for  them.  Aristides,  when  made  gen- 
eral receiver  of  Greece  to  collect  the  tribute  which  each 
state  was  to  furnish  against  the  barbarians,  "  was  poor," 
says  Plutarch,  "  when  he  set  about  it ;  poorer  still  when 
he  had  finished  it."  Henry  Watterson,  in  The  Compro- 
mises of  Life,  says :  "  Diogenes,  seeking  an  honest  man, 
might,  in  the  history  of  the  Irish  Union,  come  upon  a 
parallel  case  in  poor  old  Hussey  Bergh,  who  refused  all 
the  gold  that  England  could  offer  him,  abandoned  the 
borough  of  Kilmainham,  for  which  he  sat,  and  which 
the  British  Ministry  guaranteed  him  for  life,  voted 
against  the  bill  which  robbed  his  country  of  its  free- 
dom, and  was  found  dead  in  his  bed,  with  sixpence  on 
the  mantel,  and  a  paper  on  which  was  scrawled :  '  Ire- 
land forever,  and  be  damned  to  Kilmainham.' " 

Is  not  such  virtue  better  entitled  to  the  homage  of 
men  an  hundred  times  over  than  the  accumulations  of 
the  millionaire?  There  is  no  immortality  of  glory  con- 
nected with  millionaire  fortunes.  Soon,  very  soon,  all 
the  achievements  of  these  men  will  be  forgotten.  The 
Roman  Empire  in  its  glory  possessed  many  men  with 
fortunes  nearly  as  great  as  those  of  to-day.  The  histo- 
rian of  those  days  describes  their  chariots,  drawn  rapidly 
through  the  streets  of  Rome,  tearing  up  the  pavements 
as  they  went.  Probably  not  one  man  in  a  million  can 
mention  the  name  of  one  of  those  great  millionaires  of 
26 


386  FEDERAL    USURPATION 

ancient  Rome.  It  will  be  just  so  with  our  multi-million- 
aires two  thousand  years  from  now,  while  the  memory 
of  Abraham  Lincoln,  who  died  poor  but  wrought  so 
wonderfully  for  his  fellow-men,  will  still  exist,  tradition 
adding  to  his  merits,  his  glory  exempt  from  mutability 
and  decay,  and  as  immortal  as  the  love  of  liberty. 

It  was  the  rights  of  man  which  engaged  the  atten- 
tion of  political  thinkers  and  of  the  people  at  the  time  of 
the  Declaration  of  Independence.  The  people  at  that 
time  had  had  so  much  misery,  because  of  the  exactions 
of  the  ruling  classes,  that  they  were  suspicious  of  power 
and  government.  The  politician  of  to-day  knows  men, 
and  he  knows  how  to  turn  their  weaknesses  to  account. 
He  seeks  out  their  little  grievances  and  relieves  them, 
and  at  the  same  time  he  nominates  legislators  and  gov- 
ernors and  judges  who  will  carry  out  the  policies  of  the 
men  who  furnish  campaign  disbursements,  and  thus  put 
great  grievances  upon  the  people.  The  patriotism  which 
will  accomplish  results  to-day  must  come  from  careful 
study  of  our  institutions,  and  must  be  enthusiastic  for 
greater  liberty  for  the  masses  of  mankind.  If  mankind 
is  to  belong  to  itself,  and  not  to  arbitrary  power,  it  must 
destroy  the  power  of  the  boss.  If  the  people  of  this  coun- 
try are  to  return  to  their  own  again  we  must  cease  to 
tolerate  the  shams  which  have  always  taken  so  great  a 
hold  on  the  American  people.  We  must  do  away  with 
the  political  imposture  and  quackery  which,  along  with 
new  and  strange  religions,  have  thriven  in  our  country. 

The  destruction  of  public  virtue  results  more  from 
the  oppressive  conditions  of  life  than  from  any  other 
cause.     In  other  countries  men  are  accustomed  to  retire 


HOW   TO   RESTORE   DEMOCRATIC   REPUBLIC    387 

in  middle  life,  and  opportunity  is  thus  given  them  with 
leisure  to  study  conditions  of  government  and  public 
affairs.  The  tendency  in  our  own  country  is  to  draw 
numbers  of  young  men  from  the  country  to  the  city. 
There  the  cost  of  living  is  so  great,  and  the  opportunity 
for  advancement  so  slight,  that  all  the  energies  of  their 
life  are  absorbed  in  the  mere  making  of  a  living,  and  they 
naturally  become  bad  citizens.  So  long  as  the  trusts 
through  high  prices  can  absorb  the  wages  of  labor  and 
keep  men  working  until  the  end  of  life  to  support  them- 
selves and  their  families,  they  can  manage  government 
as  they  have  in  the  past.  Men  must  satisfy  their  physical 
wants  before  they  will  be  able  to  think  much  about  their 
political  rights.  The  government  which  allows  combina- 
tions of  corporations  to  make  the  cost  of  living  so  dear 
that  men  must  strain  their  energies  to  the  limit  to  care 
for  themselves  and  their  families,  has  no  chance  of  im- 
provement. Free  government  cannot  be  reestablished 
in  this  country  unless  monopolies,  special  privileges, 
sumptuary  laws,  and  restraints  upon  trade  are  abolished. 
Industrial  freedom  must  come  before  political  freedom 
can  come. 

Nor  will  conditions  improve  so  long  as  that  perni- 
cious fallacy  still  continues  to  possess  men's  minds,  that 
when  they  elect  public  officers  the  task  of  solving  public 
questions  is  upon  those  public  officers.  Our  President, 
our  Governor,  our  congressmen,  our  assemblymen,  will 
never  solve  public  questions  correctly  unless  there  is 
behind  them  a  vigorous  public  sentiment  demanding  that 
a  certain  line  of  action  shall  be  taken.  The  citizen  who 
attempts  to  avoid  his  responsibility  by  saying  that  he 


388  FEDERAL   USURPATION 

has  done  his  duty  by  electing  a  good  man  to  office,  little 
knows  what  forces  are  constantly  attempting  to  influence 
the  action  of  their  public  servants.  These  self -constituted 
politicians  talk  much  about  the  dear  public,  but  the  thing 
they  fear  above  all  others  is  a  real  expression  of  public 
opinion.  To  keep  the  people  quiet,  to  divert  their  atten- 
tion from  the  sinister  forces  behind  government,  to  hide 
their  own  action  behind  the  doors  of  legislative  commit- 
tees, is  the  high  art  of  the  latter-day  politician.  If  the 
people  only  knew  the  true  conditions  and  appreciated 
to  what  ends  they  are  leading,  we  almost  would  have  a 
revolution. 

The  whole  question  of  restoring  democratic  govern- 
ment is  found  in  the  single  problem  of  how  the  people 
can  control  public  men  for  the  public  benefit,  instead  of 
allowing  them  to  be  controlled  by  combinations  for  the 
benefit  of  those  combinations.  President  Cleveland,  in 
his  inaugural  address,  put  the  whole  problem  in  two  or 
three  sentences  as  follows :  "  Your  every  voter  as  surely 
as  your  chief  magistrate,  under  the  same  high  sanction, 
though  in  a  different  sphere,  exercises  a  public  trust. 
Nor  is  this  all.  Ever>'  citizen  owes  to  the  country  a 
vigilant  watch  and  close  scrutiny  of  its  public  servants, 
and  a  fair  and  reasonable  estimate  of  their  fidelity  and 
usefulness.  Thus  is  the  people's  will  impressed  upon  the 
whole  framework  of  our  civil  polity — ^municipal,  state, 
and  federal;  and  this  is  the  price  of  our  libert}-,  and 
the  inspiration  of  our  faith  in  the  republic."  The  citizen 
who  keeps  aloof  from  public  affairs  should  receive  the 
condemnation  of  everyone.  To  interest  men  in  the  dis- 
cussion of  public  affairs,  and  to  make  that  discussion 


HOW   TO    RESTORE   DEMOCRATIC   REPUBLIC    389 

widespread  and  earnest,  is  the  only  efficient  means  of  re- 
storing democratic  government.  No  amendments  to  the 
frame  of  our  government,  and  no  laws  which  legislatures 
may  pass,  will  avail  anything  in  bringing  about  a  real 
reform  in  the  condition  of  our  country,  unless  a  change 
takes  place  in  the  performance  of  our  duties  as  citizens, 
unless  we  all  come  to  believe  that  a  trust  rests  upon  each 
of  us  individually,  and  unless  the  maddening  passion  of 
our  commercial  life  is  soon  abated, 

I  will  now  try  to  indicate  one  by  one  some  changes 
in  laws  and  in  our  Constitution  which  will  aid  an  effort 
for  better  government.  The  first  step  which  the  people 
of  the  United  States  should  take  is  to  call  a  convention 
through  their  legislatures  in  two  thirds  of  the  states  for 
proposing  amendments  to  the  Constitution  of  the  United 
States.  This  Constitution  is  the  most  undemocratic  in- 
strument to  be  found  in  any  country  in  the  world  to-day. 
The  conditions  of  its  amendment  are  so  difficult  as  to 
make  amendment  impossible  unless  the  people  are  stirred 
to  their  depths  over  existing  conditions.  The  constitu- 
tions of  the  states  have  been  amended  many  times  to  meet 
the  conditions  of  modern  life.  The  Constitution  of  the 
United  States,  after  the  first  ten  amendments  at  the  time 
of  its  adoption,  was  amended  twice,  and  for  over  sixty 
years  thereafter  no  amendment  thereto  was  made.  The 
usurpations  in  government  to-day  are  largely  the  result 
of  the  rigid  provisions  of  the  Constitution  and  the  great 
difficulty  of  its  amendment.  The  President  strenuously 
insists  that  additional  powers  should  be  exercised  by  the 
national  government,  and  his  Secretary  of  State  says 
that,  unless  the  states  do  as  they  ought  to  do,  methods 


390  FEDERAL    USURPATION 

of  construction  will  be  found  reposing  those  additional 
powers  in  the  national  government.  "  A  recent  distin- 
guished member,"  says  Mr.  Paul  Fuller/  "  of  the  depart- 
ment of  justice,  who  has  come  to  practice  his  profession 
in  New  York  City,  told  a  body  of  assembled  merchants 
some  time  ago  that  the  Supreme  Court  was  a  perpetual 
convention  for  the  amendment  of  the  Constitution." 

For  sixty  years  Congress,  with  its  committees  behind 
closed  doors,  each  member  of  which  is  seeking  to  get  as 
many  pension  bills  and  private  bills  affecting  his  dis- 
trict passed  as  possible,  has  been  appropriating  hundreds 
of  millions  of  dollars  of  the  people's  money,  for  which 
there  was  not  the  slightest  authority  in  the  Constitution. 
Is  it  not  about  time  that  the  people  put  a  stop  to  these 
things?  The  way  to  do  it  is  to  remove  all  doubt  about 
the  provisions  of  the  Constitution  by  embodying  the  will 
of  the  people  to-day  in  an  amended  Constitution.  This 
cannot  be  done  by  a  single  amendment.  The  only  way 
to  stop  usurpation  is  to  remodel  the  whole  Constitution, 
and  that  can  never  be  accomplished  until  the  right  to 
amend  it  is  less  difficult  to  attain.  Let  the  people  arouse 
themselves  to  one  supreme  effort  and  change  the  method 
of  amendment  so  that  the  legislatures  of  one  third  of  the 
states  can  propose  amendments,  and  a  majority  of  the 
voters  in  a  majority  of  the  states  can  approve  amend- 
ments. 

"  The  whole  scheme  of  the  American  Constitution," 

says  Mr.  Bryce,  "  tends  to  put  stability  above  activity,  and 

to  sacrifice  the  productive  energies  of  the  bodies  it  creates 

to  their  power  of  resisting  changes  in  the  general  fabric 

•  Fuller,  Columbia  Law  Ret'iew,  March,  1905,  p.  193. 


HOW   TO   RESTORE    DEMOCRATIC   REPUBLIC    391 

of  the  government."  ^  The  object  of  a  constitution  in 
a  democratic  form  of  government  should  be  to  allow  the 
opinion  of  a  majority  of  the  electors  to  act  as  freely  and 
directly  as  possible  upon  public  questions.  Our  Consti- 
tution checks  and  defeats  popular  control,  and  makes  true 
party  government  impossible.  The  result  is  that  a  very 
few  men  control  the  parties  to-day,  and  they  control  them 
largely  for  the  private  interests  who  furnish  the  money 
for  political  campaigns. 

Washington  desired  to  make  his  administration  rep- 
resent the  whole  people,  and  conceived  the  idea  that  in 
order  to  do  this  he  must  have  in  his  cabinet  the  repre- 
sentatives of  both  parties.  So  he  selected  Jefiferson,  the 
leader  of  the  Anti-Federalists,  as  Secretary  of  State,  and 
Hamilton,  leader  of  the  Federalists,  as  Secretary  of  the 
Treasury.  He  found  it  impossible  to  carry  on  govern- 
ment with  men  whose  views  were  so  radically  different. 
William  HI,  of  England,  selected  his  first  Ministry  from 
both  of  the  political  parties,  and  the  result  was  that  he 
got  into  trouble  with  both.  But  between  1693  and  1696 
he  dismissed  the  Tories  and  confided  the  affairs  of  the 
state  to  the  Whigs,  who  had  a  majority  in  the  House  of 
Commons.  From  that  time  the  ministry  has  been  selected 
from  whatever  party  had  a  majority  in  the  House  of 
Commons,  and  that  ruling  party  has  been  held  responsible 
by  the  people  for  its  measures.  The  leaders  of  the  party 
in  power  have  been  in  the  habit  of  formulating  the  meas- 
ures of  government  to  be  presented  to  the  House  of 
Commons  for  their  approval,  and  they  have  had  to  take 
the  responsibility  for  the  wisdom  of  those  measures. 
'  Bryce,  American  Commonwealth,  vol.  i,  p.  in. 


392  FEDERAL   USURPATION 

Those  measures  have  been  discussed  fully  in  the  open 
House,  and  the  result  has  been  the  passage  of  compara- 
tively few  laws  each  year,  those  laws  being  of  a  general 
nature  affecting  the  interests  of  the  whole  body  of  the 
people. 

With  us  the  House  of  Representatives  may  be  Demo- 
cratic while  the  Senate  and  the  President  may  be  Re- 
publican. This  condition  has  existed  for  a  considerable 
proportion  of  the  time  since  the  Civil  War.  Under  such 
conditions  neither  party  is  responsible  for  legislation. 
Out  of  such  conditions  has  grown  up  the  extension  of  the 
committee  system;  and  literally  hundreds  of  thousands 
of  private  bills,  and  bills  conferring  special  privileges, 
have  been  gotten  secretly  through  the  committees  and 
then  "  jammed,"  in  the  last  days  of  the  session,  through 
the  House.  Billions  of  dollars  of  the  people's  money  have 
been  appropriated  for  purposes  unknown  to  the  Constitu- 
tion, or,  if  justified  by  the  Constitution,  for  purposes 
without  the  slightest  merit. 

These  conditions  might  be  remedied  by  making  a 
majority  in  the  House  of  Representatives  supreme  in 
the  matter  of  lawmaking,  and  giving  to  the  Senate  only 
a  suspensive  veto,  subject  to  the  second  passage  of  a 
rejected  measure  through  the  House.  The  Committee 
on  Appropriations  and  the  Ways  and  Means  Committee 
should  be  merged  into  one  large  committee,  and  given 
the  control  of  both  the  amount  of  revenue  raised  and 
the  amount  appropriated.  It  should  be  provided  by  Con- 
gressional act,  or  by  amendment  to  the  Constitution,  if 
necessary,  that  the  head  of  each  of  the  great  departments 
of  the  government  should  occupy  a  seat  on  the  floor  of 


HOW   TO    RESTORE    DEMOCRATIC   REPUBLIC    393 

the  House  of  Representatives,  and  that  they  should  be 
present  at  least  one  day  in  each  week,  on  the  opening 
of  the  sittings  of  the  House,  to  give  information  as  to  the 
needs  of  their  departments,  and  to  answer  the  questions 
of  members  of  the  House. 

In  the  year  1881  a  select  committee  of  the  United 
States  Senate  was  appointed  to  consider  a  bill  to  provide 
that  the  principal  officer  of  each  executive  department 
might  occupy  a  seat  on  the  floor  of  the  Senate  and  House 
of  Representatives.  The  committee  consisted  of  George 
H.  Pendleton,  William  B.  Allison,  Daniel  W.  Voorhees, 
James  G.  Blaine,  M.  C.  Butler,  John  J.  Ingalls,  O.  H. 
Piatt,  and  J.  T.  Farley.^  The  report  of  that  committee, 
which  was  unanimous,  included  the  proposed  bill  pro- 
viding for  this  change.^    Under  our  present  Constitution 

'  Bradford,  Lessons  of  Popular  Government,  vol.  i,  p.  324. 

2  Senate  Bill,  227  (1881). 

"That  the  Secretary  of  State,  the  Secretary  of  the  Treasury, 
the  Secretary  of  War,  the  Secretary  of  the  Navy,  the  Secretary 
of  the  Interior,  the  Attorney-General,  and  the  Postmaster-Gen- 
eral shall  be  entitled  to  occupy  seats  on  the  floor  of  the  Senate 
and  House  of  Representatives,  with  the  right  to  participate  in 
debate  on  matters  relating  to  the  business  of  their  respective  de- 
partments, under  such  rules  as  inay  be  prescribed  by  the  Senate 
and  House  respectively. 

"That  the  said  Secretaries,  the  Attorney-General,  and  the 
Postmaster-General  shall  attend  the  sessions  of  the  Senate  on 
the  opening  of  the  sittings  on  Tuesday  and  Friday  of  each  week, 
and  the  sessions  of  the  House  of  Representatives  on  the  openings 
of  the  sittings  on  Monday  and  Thursday  of  each  week  to  give 
information  asked  by  resolution  or  in  reply  to  questions  which 
may  be  propounded  to  them  under  the  rules  of  the  Senate  and 
House;  and  the  Senate  and  House  may  by  standing  order  dis- 
pense with  the  attendance  of  one  or  more  of  said  officers  on 
either  of  said  days." 


394  FEDERAL   USURPATION 

the  departments  of  the  government  are  entirely  distinct 
from  the  legislative  body,  and  yet  the  needs  of  legislation 
are  best  known  by  the  heads  of  departments.  The  min- 
isters of  parliamentar}'  governments  to-day  are  the  heads 
of  departments,  and  are  required  not  only  to  be  present 
in  the  popular  branch  of  the  legislature,  but  they  are 
selected  from  the  members  of  that  branch.  The  separa- 
tion of  the  House  of  Representatives  and  the  Senate  from 
the  heads  of  departments,  each  working  independently 
for  a  common  end,  is  entirely  out  of  keeping  with  modem 
parliamentary  ideas. 

Some  means  should  be  devised  to  stop  the  fifteen  thou- 
sand bills  which  come  into  the  House  of  Representatives  in 
a  single  session  of  Congress.  Three  fourths  of  these  bills 
would  never  have  had  a  being  had  we  adopted  the  modem 
parliamentary'  system  of  government,  wherein  the  min- 
istr)'  representing  the  prevailing  party  prepares  bills  and 
limits  their  introduction.  Open  public  discussion  of  pro- 
posed acts  has  practically  ceased  to  exist  in  the  House 
of  Representatives,  and  the  Congressman,  with  no  op- 
portunity' for  attaining  fame,  contents  himself  by  getting 
on  as  prominent  a  committee  as  possible,  and  by  gaining 
favor  with  his  constituents  through  procuring  for  them 
private  acts  and  special  legislation.  These  measures  are 
hardly  ever  discussed  in  the  open  House,  they  are  simply 
an  allotment  to  each  member  to  aid  him  in  procuring 
support  in  his  district.  As  a  result  we  have  the  most  ex- 
travagant government  in  the  world.  Our  River  and 
Harbor  Bill  alone,  in  the  last  session  of  Congress,  was 
greater  than  the  total  cost  of  government  prior  to  i860. 
Congress  and  the  President  expended  about  $2,000,000,- 


HOW   TO   RESTORE    DEMOCRATIC   REPUBLIC    395 

000  of  the  people's  money  in  the  Fifty-ninth  Congress, 
at  least  a  billion  more  than  should  have  been.  The 
way  to  stop  this  vast  expenditure  is  to  provide  that  no 
private  pension  bill  or  any  other  kind  of  special  legis- 
lation shall  be  passed  by  Congress.  The  claims  for  pen- 
sions can  be  adjusted  by  the  Commissioner  of  Pensions. 
The  other  claims  upon  the  government  should  be  ad- 
justed by  the  Court  of  Claims.  General  legislation  should 
originate  and  be  freely  discussed  in  the  open  House,  and 
the  autocratic  powers  of  the  Speaker,  which  we  have 
described,  should  be  taken  away. 

The  true  test  of  a  good  constitution  is  that  it  allows 
the  voice  of  the  people  readily  to  be  reflected  in  legisla- 
tion, and  that  it  calls  into  existence  and  keeps  alive  the 
political  action  of  the  people.  Our  Constitution  does  not 
permit  this.  Whenever  a  majority  of  the  people  can 
easily  enforce  .their  will  upon  the  government,  we  shall 
have  government  by  the  people.  With  our  present  Con- 
stitution Republicans  and  Democrats  fight  a  little  in  the 
open  House,  and  then  connive  and  collude  behind  the 
doors  of  the  committees  in  aiding  each  other  to  pass  all 
kinds  of  special  and  private  bills  requiring  extravagant 
expenditure  of  the  people's  money.  There  is  no  such 
thing  as  reflecting  the  will  of  the  people,  except  by  real 
party  government,  such  as  does  not  exist  in  this  country. 
The  ideas  of  the  ordinary  Democrat  or  Republican  in 
Congress  upon  public  questions  are  hazy  and  indefinite. 
What  we  need  in  this  country  are  parties  that  contend 
for  principles,  and  not  for  plunder.  What  we  want  more 
than  military  or  naval  academies,  are  schools  where  men 
can  learn  something  of  constitutional  law,  international 


396  FEDERAL   USURPATION 

law,  political  economy,  and  principles  of  government. 
The  ordinary  Congressman  has  plenty  of  unverified  con- 
victions resting  upon  strong  sentiment,  and  maintains 
them  with  perfect  confidence,  but  seldom  is  he  a  master 
in  knowledge  of  government  and  of  public  questions. 
When  will  the  time  come  in  our  country  that  a  large 
body  of  men,  as  in  England,  are  able  and  willing  to  give 
thirty  or  forty  years  to  the  study  of  public  questions, 
with  true  devotion  to  the  public  welfare,  and  without 
any  other  recompense  than  the  approval  of  their  coun- 
trymen? In  other  countries,  men  born  to  wealth  come 
into  the  world  surrounded  with  traditions  of  public  ser- 
vice. Here  the  only  ambition  our  wealthy  young  men 
appear  to  bring  from  college  is  to  make  more  money 
than  their  fathers,  and  to  live  more  luxuriously. 

Politics  as  a  trade  has  been  the  curse  of  the  United 
States  ever  since  the  Civil  War,  and  will  continue  to  be 
until  a  new  line  of  men  with  new  ideas  of  their  duties 
to  their  countrymen  are  heard  in  the  House  of  Repre- 
sentatives. Democracy  will  never  be  strong  until  it  both 
has  opinions  on  public  questions  and  then  has  an  op- 
portunity to  embody  those  opinions  in  legislation.  Party 
government  in  our  country  will  be  the  curse  it  has  been 
for  many  years  until  our  government  is  so  constituted 
that  party  principles,  reflecting  the  different  opinions  of 
the  people,  have  a  chance  to  come  forward  in  public  dis- 
cussion before  being  embodied  in  legislation.  Party  gov- 
ernment will  exist  only  upon  the  surface  so  long  as  the 
public  lives  and  acts  of  the  members  of  Congress  are 
hidden  behind  the  doors  of  a  secret  committee.  Cor- 
ruption will  find  in  these  committees  more  and  more  its 


HOW   TO   RESTORE   DEMOCRATIC   REPUBLIC    397 

unfailing  shelter,  and  usurpation  will  go  on  as  it  has 
unless  the  whole  system  of  government  is  rearranged 
upon  a  basis  where  the  people  can  know  what  is  going  on. 

If  the  people  wish  to  rid  themselves  of  the  rule  of 
a  small  class  of  men  who  control  the  trusts  and  railroads 
in  this  country,  let  them  make  an  end  of  this  kind  of 
government.  Let  all  things  in  their  public  assemblies 
be  done  in  the  open.  Let  them  insist  that  these  tens  of 
thousands  of  private  bills  shall  be  done  away  with  ab- 
solutely. Let  them  have  an  opportunity  to  know  what 
their  representative  is  doing,  and  then  let  them  put  up 
an  almighty  fight  against  him  whenever  he  goes  amiss. 
This  is  the  one  hope  for  the  existence  of  anything  like 
free  government.  It  is  only  when  the  political  party  in 
power  is  obliged  to  take  upon  its  shoulders  all  the  mis- 
takes of  government,  and  to  become  the  target  of  all 
criticism  against  government,  that  there  is  any  such  thing 
as  party  responsibility.  To-day  the  people  know  little 
about  their  representatives.  They  return  them  for  being 
good  fellows,  and  for  their  ability  to  get  government  jobs 
for  their  district  leaders,  but  the  merit  of  the  public 
measures  which  they  support  is  about  the  last  thing  on 
which  their  return  depends. 

Another  change  which  would  bring  salutary  results 
is  to  make  the  term  of  the  President  seven  years  instead 
of  four,  and  take  away  the  right  of  reelection.  The 
President  should  also  be  given  the  power  to  appoint, 
without  the  advice  and  consent  of  the  Senate,  the  ambas- 
sadors, consuls,  judges,  and  other  officials  of  the  United 
States  whom  he  now  nominates.  The  result  of  requiring 
the  consent  of  the  United  States  Senate  to  these  nomina- 


398  FEDERAL    USURPATION 

tions  has  been  to  make  the  Senators,  to  a  certain  extent, 
the  masters  of  the  executive,  and  to  aid  them  through 
this  patronage  in  building  up  party  machines  in  their 
several  states.  The  Senators  of  any  particular  state, 
where  nominations  are  to  be  made,  simply  say  to  the 
President  that  their  consent  must  be  obtained  to  the 
nomination  or  that  their  associate  Senators  will  not  con- 
firm it.  In  this  way  they  destroy  the  intent  of  the  f  ramers 
of  the  Constitution  that  the  Senate  should  consent  to  all 
the  nominations  of  the  President,  except  where  the  per- 
son nominated  was  an  improper  person  for  the  position. 
This  required  consent  of  the  Senate  to  the  President's 
appointments  has  united  the  legislative  with  the  execu- 
tive department,  and  tends  to  destroy  that  separation  of 
coordinate  powers  which  was  the  desire  and  pride  of 
the  men  who  framed  the  Constitution.  The  President 
should  be  held  responsible  for  appointments ;  if  they  are 
bad  appointments  he  should  not  be  allowed  to  divide  re- 
sponsibility with  the  Senate,  if  good  he  is  entitled  to  all 
the  credit  of  making  them. 

In  connection  with  this  change  in  the  appointment  of 
the  officials  of  the  United  States,  the  term  of  all  the  in- 
ferior appointees,  which  is  now  four  years,  should  be 
made  indefinite  in  time ;  and  the  appointment  of  all  offi- 
cials of  inferior  grade  should  be  transferred  from  the 
President  to  the  heads  of  departments,  to  whom  they 
should  be  responsible  for  the  efficient  conduct  of  their 
work.  In  all  the  higher  grades  of  appointments,  aside 
from  those  of  ambassadors,  public  ministers,  heads  of 
Departments,  and  judges,  a  high-grade  examination  in 
law,  economics,  and  public  administration  of  law,  such 


HOW   TO    RESTORE   DEMOCRATIC   REPUBLIC     399 

as  is  found  in  the  civil  service  of  Germany,  should  be 
adopted.  There  is  no  greater  reproach  upon  our  coun- 
try than  the  kind  of  consuls  which  we  send  to  foreign 
countries.  If  men  were  selected  for  those  positions  be- 
cause of  their  acquirements  and  character  they  could  be 
most  efficient  aids  to  the  importers  and  exporters  of  our 
country.  With  indefinite  terms  of  office  established  for 
all  appointees,  instead  of  four  years,  no  officeholder 
should  be  removed  from  office  except  for  misconduct. 
A  statement  in  writing  of  the  particular  kind  of  miscon- 
duct complained  of  should  be  served  upon  him,  and  a  real 
hearing  with  counsel  and  witnesses  should  be  given  him 
by  the  head  of  the  department  to  which  he  belongs.  A 
permanent  public  service  of  a  higher  grade  could  thus  be 
brought  about  and  the  spoils  system  to  a  considerable 
extent  eradicated. 

Another  amendment  to  the  Constitution  should  pro- 
vide for  the  election  of  United  States  Senators  by  a  ma- 
jority of  the  voters  in  each  state.  Eighteen  states  have 
already  passed  laws  in  favor  of  this  measure.  Five  times 
has  a  bill  proposing  such  an  amendment  passed  the  House 
of  Representatives  by  an  almost  utianimous  vote,  and  on 
each  occasion  it  has  either  been  lost  in  the  Senate  or 
disposed  of  without  reaching  a  direct  vote.  Such  an 
election  would  have  many  good  results.  It  would  en- 
tirely remove  the  deadlocks  which  have  been  seen  in  the 
legislatures  of  the  states  of  Delaware,  New  Jersey,  Rhode 
Island,  and  other  states  in  recent  years;  also,  it  would 
remove  the  cause  for  corrupting  state  legislatures,  which 
has  been  so  conspicuous  in  recent  elections  in  Colorado, 
Montana,  and  other  states.     Again,  the  election  of  the 


400  FEDERAL   USURPATION 

members  of  assembly  in  the  different  states,  in  years 
when  a  United  States  Senator  is  to  be  elected,  is  diverted 
from  the  real  purpose  of  the  legislature.  The  tendency 
of  such  a  contest  is  to  array  the  people  in  political  parties, 
while  about  the  only  difference  between  the  election  of 
the  Senator  of  one  party  and  the  Senator  of  the  oppos- 
ing party,  under  our  present  rigid  Constitution,  is  the 
disposition  of  the  spoils  of  office  to  the  faithful  hench- 
men who  marshal  the  forces  at  the  polls  for  the  one  or 
the  other  candidate.  Give  the  people  direct  nomination 
of  United  States  Senators,  and  submit  their  election  to 
the  great  body  of  the  voters  of  the  state,  and  many  a 
present  representative  in  the  Senate  of  the  sugar  trust, 
the  steel  trust,  the  railroads,  the  coal  barons,  the  tobacco 
monopoly,  and  the  express  companies  would  be  left  in 
private  life  to  continue  his  business  as  an  attorney  or 
trusty  agent  of  these  organizations. 

The  sessions  of  Congress  should  be  so  arranged  that 
the  second  session  will  not  occur  after  an  election  wherein 
a  member  who  has  been  defeated  continues  to  represent 
his  district.  Such  a  member  has  no  motive,  in  such  a 
session  of  Congress,  to  carry  out  the  will  of  his  con- 
stituents who  have  rejected  him  at  the  polls.  He  can 
avail  himself,  if  he  desires,  of  the  secrecy  of  the  com- 
mittee to  hide  his  action  from  the  members  of  his  dis- 
trict, and  even  if  it  is  known,  he  cares  but  little,  for  the 
people  have  already  declared  against  him.  In  the  session 
of  Congress  of  1906-7,  we  saw  a  Representative  from 
the  state  of  New  York  who  was  not  to  return  enter- 
taining Congressmen  at  champagne  dinners,  thereby 
seeking  the  passage  of  the  Ship  Subsidy  Bill.     Another 


HOW   TO   RESTORE   DEMOCRATIC   REPUBLIC     401 

member  from  Ohio,  whom  the  people  had  refused  to 
nominate,  sought  to  take  the  people's  money  in  the 
amount  of  many  million  dollars  and  appropriate  it  to 
this  private  enterprise. 

By  an  act  of  Congress  under  date  of  July  13,  1866, 
a  tax  of  ten  per  cent  was  imposed  upon  the  note  issues 
of  state  banks  for  the  purpose  of  destroying  them.  How 
easily  could  Congress  impose  a  tax  of  ten  per  cent  upon 
the  capital  of  monopolies,  and  thus  end  their  existence. 
We  suggest  this  to  the  attention  of  our  President,  who 
is  so  strenuous  in  his  opposition  to  these  monstrous  com- 
binations of  capital,  and  we  also  urge  upon  his  attenion 
that  by  simply  removing  the  duties  upon  imports  of  like 
products  to  those  manufactured  by  the  trusts  their  power 
to  rob  the  people  would  be  greatly  impaired.  But  in  that 
case,  to  what  source  would  the  political  parties  look  for 
the  money  necessary  to  carry  on  national  and  Congres- 
sional campaigns? 

We  have  reduced  the  responsibility  of  members  of  the 
House  of  Representatives  and  of  Senators  to  the  lowest 
point.  The  Senators  of  Delaware,  of  New  Jersey,  of 
Rhode  Island  are  responsible  only  to  their  own  little 
states.  A  Representative  from  a  district  in  the  great 
state  of  New  York  is  responsible  only  to  his  immediate 
constituents.  The  Senators  from  Nevada  are  permitted 
to  participate  in  the  government  of  all  the  rest  of  the 
United  States,  without  the  slightest  responsibility  or 
accountability  to  those  states.  As  the  country  grows  the 
separate  interests  of  all  the  people  diminish.  The  only 
way  to  increase  responsibility  is  to  cut  up  by  the  roots 
the  whole  system  of  private  bills  and  special  legislation, 
27 


402  FEDERAL    USURPATION 

and  to  limit  the  legislation  of  Congress  to  general  taxa- 
tion, war,  treaties,  foreign  and  interstate  commerce, 
postal  service,  bankruptcy,  copyrights,  patent  rights, 
naturalization,  and  coinage,  objects  which  are  of  common 
concern  to  all  the  people.  The  power  to  vote  the  people's 
money  away  in  secret  committee  rooms  has  resulted  in 
the  most  extravagant  government  ever  known  in  all  his- 
tory, and  hundreds  of  millions  of  dollars  are  used  not 
only  to  build  and  maintain  navies  and  armies,  to  promote 
agriculture  in  the  separate  states,  to  prosecute  the  busi- 
ness of  building  reservoirs  and  selling  water  to  farmers, 
but  to  hide  usurpation  in  a  hundred  other  different  ways. 
Will  the  people  ever  awake  to  the  danger  of  such  gov- 
ernment and  really  assert  their  power  and  destroy  the 
existence  of  the  two  political  machines,  not  parties,  that 
have  so  thoroughly  betrayed  their  interests?  There  is 
only  one  way  to  do  it,  and  that  is  to  shut  off  the  private 
and  special  bills,  and  limit  legislation  to  the  subjects  over 
which  the  states  have  conferred  power  upon  Congress. 
With  such  a  limitation,  and  with  legislation  carried  on  in 
the  open  session  where  everyone  can  see  and  hear  what 
is  going  on,  there  would  be  a  probability  of  improvement 
in  affairs. 

The  existence  of  political  parties  which  really  rep- 
resent the  opinions  of  the  people  and  which  act  in  vigor- 
ous opposition  to  each  other  is  the  hope  of  the  country. 
The  parties  of  to-day  do  not  represent  the  opinions  of  the 
people,  but  represent  political  machines  which  exist  for 
the  purpose  of  securing  to  the  faithful  henchmen  the 
spoils  of  office.  No  man  who  really  has  convictions  on 
public  questions,  and  who  hates  corruption,  can  attain 


HOW   TO    RESTORE   DEMOCRATIC    REPUBLIC     403 

any  party  standing  in  any  political  party  to-day.  The 
party  stands  for  graft  and  nothing  but  graft.  The  pity 
is  that  by  and  by  the  people  will  come  to  regard  both 
parties  as  seeking  spoils  of  office  only,  and  will  become 
so  disgusted  with  them  as  to  accept  for  a  leader  some 
unscrupulous  demagogue,  rich  in  promises  and  glib  of 
tongue ;  or  it  may  be  that  the  President,  with  the  con- 
sent of  the  people,  will  step  in  and  take  the  entire  con- 
trol of  the  whole  government.  Let  me  give  the  reader 
an  illustration.  In  1894  an  exposure  was  made  before  the 
Italian  Parliament  showing  that  Crispi,  the  Italian  Prime 
Minister,  had  received  corruption  money  from  a  bank 
at  Rome.  Thereupon  a  struggle  commenced  between 
Crispi  and  his  opponents,  with  the  result  that  parliamen- 
tary government  was  virtually  suspended.  The  King  of 
Italy  paroled  Parliament,  and  for  a  considerable  time 
he  imposed  taxes  without  legislative  sanction,  the  people, 
because  of  their  disgust  at  the  corruptions  of  the  Cham- 
ber of  Deputies,  allowing  this  to  be  done  without  ob- 
jection. 

There  is  danger  of  such  usurpation  in  our  own  coun- 
try. The  way  to  avert  it  is  to  destroy  the  spoils  sys- 
tem, send  the  bosses  and  the  cheap  politicians  to  the  rear, 
amend  the  Constitution  as  indicated  above,  select  a  higher 
class  of  Representatives  and  Senators,  limit  legislation 
to  general  subjects  of  common  interest  considered  in 
open  session,  and  make  the  political  parties  fighting 
parties  upon  public  measures  and  not  mere  machines  de- 
pending upon  corruption  and  graft.  We  long  have  can- 
onized our  Constitution,  we  have  regarded  the  man  who 
condemned  it  as  unpatriotic ;  let  us  now  learn  that  a  Con- 


404  FEDERAL    USURPATION 

stitiition  framed  one  hundred  and  twenty  years  ago  must 
necessarily  be  imperfect  to-day,  that  it  must  be  treated 
like  all  such  productions  of  man  as  becoming  defective 
in  time,  and  that  it  must  be  amended  to  meet  existing 
conditions  rather  than  to  allow  government  to  be  car- 
ried on  by  usurpation  of  power. 

The  way  to  make  a  state  strong  is  to  increase  the 
power  of  the  people  and  make  them  partakers  through 
the  referendum  in  the  control  of  important  legislation 
affecting  their  state,  and  especially  their  cities.  In  the 
twenty  years  between  1874  and  1894,  the  Swiss  Federal 
Assembly  passed  one  hundred  and  seventy-five  laws, 
nineteen  of  which  were  reviewed  by  the  people  under 
the  referendum.  Besides  these  nineteen  laws,  eight 
amendments  to  the  Constitution  were  also  reviewed  un- 
der the  referendum,  and  two  more  laws  were  brought 
forward  by  the  initiative,  so  that  in  twenty  years  the 
people  of  the  Swiss  Confederation  voted  upon  twenty- 
nine  different  questions.  Sixteen  of  these  laws  and 
amendments  were  rejected  and  thirteen  approved. 

The  most  beneficial  result  of  the  referendum  is  that 
it  separates  public  issues  from  men,  and  gets  the  people 
into  the  habit  of  considering  the  advisability  of  laws  upon 
their  merits.  It  keeps  the  representatives  of  the  people  in 
close  touch  with  public  opinion,  because  if  public  opinion 
is  sufficient  to  petition  therefor,  the  action  of  the  repre- 
sentatives must  be  submitted  to  the  will  of  the  people. 
A  strange  result  about  the  government  of  Switzerland 
is  found  in  the  fact  that  whereas  in  the  German  and  Aus- 
trian Empire  the  people  speaking  different  tongues  have 
been  quarreling  over  their  language  and  their  customs, 


HOW   TO    RESTORE   DEMOCRATIC   REPUBLIC     405 

yet  in  Switzerland,  where  the  people  are  German,  French, 
ItaHan,  and  Romansch,  the  separate  nationaUties  in  re- 
cent years  have  carried  on  the  government  with  few  con- 
flicts. Liberty  unites  a  people;  oppression  and  usurpa- 
tion divide  them.  Liberty  gives  birth  to  thought  and 
action  and  develops  men ;  usurpation  suppresses  indi- 
vidual initiative  and  destroys  liberty.  Break  down  the 
local  and  state  governments,  attempt  to  control  these 
forty-six  states  from  Washington,  and  you  destroy  the 
manhood  of  the  people  and  create  an  intolerable  des- 
potism. 

The  way  for  the  people  of  the  states  to  protect  them- 
selves from  the  usurpations  of  the  national  government  is 
to  inaugurate  in  each  state  a  vigorous  state  policy.  They 
should  resent  with  indignation  every  attempt  of  the  na- 
tion to  infringe  upon  their  rights.  They  should  see  that 
good  men  are  elected  to  office,  and  that  the  legislature 
does  its  duty.  They  should  insist  that  all  matters  of 
great  concern  affecting  their  cities  should  be  submitted 
on  a  referendum  for  the  decision  of  the  voters  of  each 
city.  Year  in  and  year  out  they  should  insist  on  the 
rights  of  localities  to  control  their  local  matters,  and  on 
the  rights  of  the  states  to  govern  their  state  affairs.  In 
this  way  more  than  any  other  will  they  remove  the  excuse 
of  the  national  government  for  the  exercise  of  usurping 
powers.  The  passage  of  the  Muller  Bill  by  the  Illinois 
Legislature,  submitting  the  question  of  municipal  owner- 
ship and  the  operation  of  city  railways  to  the  voters  of 
Chicago,  is  said  with  one  blow  to  have  struck  down  graft 
legislation,  and  to  have  destroyed  the  corrupt  organiza- 
tion of  the  prevailing  party  in  Illinois  at  that  time. 


4C36  FEDERAL   USURPATION 

If  the  citizen  would  preserve  the  dignity  and  impor- 
tance of  his  state  government,  which  is  the  guardian  of 
his  Hberty,  of  his  property,  of  all  his  domestic  relations, 
and  of  everything  which  he  holds  dear  in  this  life,  he 
must  be  vigilant  to  see  that  it  is  constantly  improved 
and  worthy  of  the  people's  confidence.  The  state  gov- 
ernment, if  honest  and  vigorous,  can  alleviate  most  of 
the  evils  of  which  the  people  complain,  so  far  as  law  can 
alleviate  evils.  As  Machiavelli  well  said :  "  There  are 
no  laws  and  no  institutions  which  have  power  to  curb 
a  universal  corruption,"  The  state  legislature  creates 
corporations,  and  the  same  power  which  creates  can 
provide  that  in  case  of  disobedience  to  its  laws  the  life 
of  the  corporation  shall  be  forfeited.  The  state  is  under 
no  obligation  to  allow  a  foreign  corporation  to  carry  on 
business  within  its  confines. 

But  for  the  control  of  Congress  over  interstate  com- 
merce the  states  could  destroy  every  oppressive  trust  in 
this  land.  The  reason  why  trusts  have  become  so  power- 
ful is  that  the  national  government  always  has  insisted 
that  the  state  should  not  forbid  the  bringing  of  the  goods 
of  the  trust  within  the  confines  of  the  state,  because  it  in- 
terfered with  the  nation's  control  over  interstate  com- 
merce. Let  the  people  amend  the  Constitution  and  take 
from  the  national  government  the  power  to  control  in- 
terstate commerce,  then  through  their  state  laws  they  can 
make  short  work  of  the  trusts.  The  attempt  to  control 
these  lawless  combinations  under  the  interstate  commerce 
clause  of  the  Constitution  will  never  prove  effectual.  The 
United  States  courts  have  no  power  except  such  as  is 
given  them  by  the  Constitution,  and  cannot  avail  them- 


HOW    TO    RESTORE    DEMOCRATIC   REPUBLIC     407 

selves  of  common-law  powers.  The  state  courts  have 
unlimited  power,  except  as  withheld  from  them  by  the 
state  constitutions,  and  can  avail  themselves  of  all  the 
original  authority  of  a  sovereign  state  and  of  all  the 
rules  and  customs  of  the  common  law.  The  result  of 
these  differences  in  their  judicial  power  is  that  the  na- 
tional courts,  in  their  criminal  as  well  as  in  their  civil 
jurisdiction,  are  greatly  hampered  by  limitations,  while 
the  state  courts  with  original  and  almost  unlimited  juris- 
diction have  the  power  necessary  to  root  out  evils. 

But  more  effective  than  laws,  more  effective  than 
courts,  is  the  indignation  of  many  strong  men  at  abuses 
which  the  people's  good-natured  tolerance  have  allowed 
to  wax  great  in  power.  Until  that  spirit  of  indignation 
is  stirred  to  action  all  over  our  land  and  the  people  are 
ready  to  fight  for  the  vindication  of  their  rights,  there  is 
little  hope  of  effective  reforms.  We  need  the  spirit  of  old 
Peter  Muhlenberg,  who,  in  Revolutionary  days,  to  the 
astonishment  of  his  congregation,  flung  aside  his  surplice, 
disclosing  a  Continental  uniform,  and  exclaimed :  "  There 
is  a  time  for  all  things — a  time  to  preach  and  a  time  to 
pray ;  but  there  is  also  a  time  to  fight,  and  that  time  has 
come !  " 


APPENDIX 


APPENDIX 


CONSTITUTION    OF   THE    UNITED    STATES   OF 
AMERICA 

We,  the  people  of  the  United  States,  in  order  to  form  a 
more  perfect  union,  establish  justice,  insure  domestic  tran- 
quillity, provide  for  the  common  defense,  promote  the  gen- 
eral welfare,  and  secure  the  blessings  of  liberty  to  ourselves 
and  our  posterity,  do  ordain  and  establish  this  Constitution 
for  the  United  States  of  America. 

ARTICLE  I.  Section  i. — i.  All  legislative  powers 
herein  granted  shall  be  vested  in  a  Congress  of  the  United 
States,  which  shall  consist  of  a  Senate  and  House  of  Repre- 
sentatives. 

Section  2. — i.  The  House  of  Representatives  shall  be 
composed  of  members  chosen  every  second  year  by  the 
people  of  the  several  States;  and  the  electors  in  each  State 
shall  have  the  qualifications  requisite  for  electors  of  the 
most  numerous  branch  of  the   State  legislature. 

2.  No  person  shall  be  a  Representative  who  shall  not 
have  attained  to  the  age  of  twenty-five  years,  and  been 
seven  years  a  citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of  that  State  in  which 
he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within  this 
Union,  according  to  their  respective  numbers,  which  shall 
be  determined  by  adding  to  the  whole  number  of  free  per- 
sons, including  those  bound  to  service  for  a  term  of  years, 
and  excluding  Indians  not  taxed,  three  fifths  of  all  other 
persons.      The    actual    enumeration    shall    be    made    within 

411 


412  FEDERAL    USURPATION 

three  years  after  the  first  meeting  of  the  Congress  of  the 
United  States,  and  within  every  subsequent  term  of  ten 
years,  in  such  manner  as  they  shall  by  law  direct.  The 
number  of  Representatives  shall  not  exceed  one  for  every 
thirty  thousand,  but  each  State  shall  have  at  least  one 
Representative;  and  until  such  enumeration  shall  be  made, 
the  State  of  New  Hampshire  shall  be  entitled  to  choose 
three;  Massachusetts,  eight;  Rhode  Island  and  Providence 
Plantations,  one;  Connecticut,  five;  New  York,  six;  New 
Jersey,  four;  Pennsylvania,  eight;  Delaware,  one;  Mary- 
land, six ;  Virginia,  ten ;  North  Carolina,  five ;  South  Caro- 
lina, five ;  and  Georgia,  three. 

4.  When  vacancies  happen  in  the  representation  from 
any  State,  the  executive  authority  thereof  shall  issue  writs 
of  election  to  fill  such  vacancies. 

5.  The  House  of  Representatives  shall  choose  their 
Speaker  and  other  officers,  and  shall  have  the  sole  power 
of  impeachment. 

Section  3. — i.  The  Senate  of  the  United  States  shall 
be  composed  of  two  Senators  from  each  State,  chosen  by 
the  legislature  thereof,  for  six  years ;  and  each  Senator  shall 
have  one  vote. 

2.  Immediately  after  they  shall  be  assembled  in  conse- 
quence of  the  first  election,  they  shall  be  divided  as  equally 
as  may  be,  into  three  classes.  The  seats  of  the  Senators 
of  the  first  class  shall  be  vacated  at  the  expiration  of  the 
second  year,  of  the  second  class  at  the  expiration  of  the 
fourth  year,  and  of  the  third  class  at  the  expiration  of  the 
sixth  year,  so  that  one  third  may  be  chosen  every  second 
year;  and  if  vacancies  happen,  by  resignation  or  otherwise, 
during  the  recess  of  the  legislature  of  any  State,  the  Ex- 
ecutive thereof  may  make  temporary  appointments  until  the 
next  meeting  of  the  legislature,  which  shall  then  fill  such 
vacancies. 

3.  No  person  shall  be  a  Senator  who  shall  not  have  at- 
tained to  the  age  of  thirty  years,  and  been  nine  years  a 
citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  for  which  he  shall 
be  chosen. 


APPENDIX  413 

4.  The  Vice  President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  vote,  unless  they 
be  equally  divided. 

5.  The  Senate  shall  choose  their  other  officers,  and  also 
a  president  pro  tempore,  in  the  absence  of  the  Vice  Presi- 
dent, or  when  he  shall  exercise  the  office  of  President  of 
the  United  States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all  im- 
peachments. When  sitting  for  that  purpose,  they  shall  be 
on  oath  or  affirmation.  When  the  President  of  the  United 
States  is  tried,  the  Chief  Justice  shall  preside ;  and  no  per- 
son shall  be  convicted  without  the  concurrence  of  two  thirds 
of  the  members  present. 

7.  Judgment  in  cases  of  impeachment  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust,  or  profit,  under 
the  United  States;  but  the  party  convicted  shall  neverthe- 
less be  liable  and  subject  to  indictment,  trial,  judgment,  and 
punishment,  according  to  law. 

Section  4. — i.  The  times,  places,  and  manner  of  holding 
elections  for  Senators  and  Representatives  shall  be  pre- 
scribed in  each  State  by  the  legislature  thereof;  but  the 
Congress  may,  at  any  time,  by  law,  make  or  alter  such 
regulations,   except  as  to  the   places  of  choosing  Senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every 
year,  and  such  meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  law  appoint  a  different  day. 

Section  5. — i.  Each  House  shall  be  the  judge  of  the 
elections,  returns,  and  qualifications  of  its  own  members, 
and  a  majority  of  each  shall  constitute  a  quorum  to  do 
business ;  but  a  smaller  number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  attendance  of 
absent  members  in  such  manner  and  under  such  penalties 
as  each  House  may  provide. 

2.  Each  House  may  determine  the  rules  of  its  proceed- 
ings, punish  its  members  for  disorderly  behavior,  and,  with 
the  concurrence  of  two  thirds,  expel  a  member. 

3.  Each  House  shall  keep  a  journal  of  its  proceedings, 
and   from  time  to  time   publish   the  same,   excepting  such 


414  FEDERAL    USURPATION 

parts  as  may  in  their  judgment  require  secrecy;  and  the 
yeas  and  nays  of  the  members  of  either  House,  on  any 
question,  shall,  at  the  desire  of  one  fifth  of  those  present, 
be  entered  on  the  journal. 

4.  Neither  House,  during  the  session  of  Congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  place  than  that  in  which  the 
two  Houses  shall  be  sitting. 

Section  6. — i.  The  Senators  and  Representatives  shall 
receive  a  compensation  for  their  services,  to  be  ascertained 
by  law,  and  paid  out  of  the  Treasury  of  the  United  States. 
They  shall,  in  all  cases  except  treason,  felony,  and  breach 
of  the  peace,  be  privileged  from  arrest  during  their  at- 
tendance at  the  session  of  their  respective  Houses,  and  in 
going  to  and  returning  from  the  same;  and  for  any  speech 
or  debate  in  either  House,  they  shall  not  be  questioned  in 
any  other  place. 

2.  No  Senator  or  Representative  shall,  during  the  time 
for  which  he  was  elected,  be  appointed  to  any  civil  office 
under  the  authority  of  the  United  States  which  shall  have 
been  created,  or  the  emoluments  whereof  shall  have  been 
increased,  during  such  time;  and  no  person  holding  any 
office  under  the  United  States  shall  be  a  member  of  either 
House  during  his  continuance  in  office. 

Section  7. — i.  All  bills  for  raising  revenue  shall  origi- 
nate in  the  House  of  Representatives;  but  the  Senate  may 
propose  or  concur  with  amendments,  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  become  a 
law,  be  presented  to  the  President  of  the  United  States; 
if  he  approve  he  shall  sign  it,  but  if  not  he  shall  return 
it  with  his  objections  to  that  House  in  which  it  shall  have 
originated,  who  shall  enter  the  objections  at  large  on  their 
journal,  and  proceed  to  reconsider  it.  If,  after  such  re- 
consideration, two  thirds  of  that  House  shall  agree  to  pass 
the  bill,  it  shall  be  sent,  together  with  the  objections,  to 
the  other  House,  by  which  it  shall  likewise  be  reconsidered, 
and  if  approved  by  two  thirds  of  that  House,  it  shall  be- 
come a  law.    But  in  all  such  cases  the  votes  of  both  Houses 


APPENDIX  415 

shall  be  determined  by  yeas  and  nays,  and  the  names  of 
the  persons  voting  for  and  against  the  bill  shall  be  en- 
tered on  the  journal  of  each  House  respectively.  If  any 
bill  shall  not  be  returned  by  the  President  within  ten  days 
(Sundays  excepted)  after  it  shall  have  been  presented  to 
him,  the  same  shall  be  a  law,  in  like  manner  as  if  he  had 
signed  it,  unless  the  Congress,  by  their  adjournment,  pre- 
vent its  return,  in  which  case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote,  to  which  the  con- 
currence of  the  Senate  and  House  of  Representatives  may 
be  necessary  (except  on  a  question  of  adjournment)  shall 
be  presented  to  the  President  of  the  United  States,  and 
before  the  same  shall  take  effect  shall  be  approved  by  him, 
or,  being  disapproved  by  him,  shall  be  re-passed  by  two 
thirds  of  the  Senate  and  House  of  Representatives,  accord- 
ing to  the  rules  and  limitations  prescribed  in  the  case  of 
a  bill. 

Section  8. — The  Congress  shall  have  power — 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises, 
to  pay  the  debts  and  provide  for  the  common  defense  and 
general  welfare  of  the  United  States;  but  all  duties,  im- 
posts, and  excises  shall  be  uniform  throughout  the  United 
States; 

2.  To  borrow  money  on  the  credit  of  the  United  States; 

3.  To  regulate  commerce  with  foreign  nations,  and 
among  the  several  States,  and  with  the  Indian  tribes ; 

4.  To  establish  a  uniform  rule  of  naturalization,  and 
uniform  laws  on  the  subject  of  bankruptcies  throughout 
the  United  States; 

5.  To  coin  money,  regulate  the  value  thereof  and  of 
foreign  coin,  and  fix  the  standard  of  weights  and  meas- 
ures; 

6.  To  provide  for  the  punishment  of  counterfeiting  the 
securities  and  current  coin  of  the  United  States ; 

7.  To  establish  post-ofifices  and  post-roads; 

8.  To  promote  the  progress  of  science  and  useful  arts, 
by  securing  for  limited  times  to  authors  and  inventors  the 
exclusive  right  to  their  respective  writings  and  discoveries; 

9.  To  constitute  tribunals  inferior  to  the  Supreme  Court; 


41 6  FEDERAL    USURPATION 

10.  To  define  and  punish  piracies  and  felonies  committed 
on  the  high  seas,  and  offenses  against  the  law  of  nations; 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  water; 

12.  To  raise  and  support  armies;  but  no  appropriation 
of  money  to  that  use  shall  be  for  a  longer  term  than  two 
years ; 

13.  To  provide  and  maintain  a  navy; 

14.  To  makes  rules  for  the  government  and  regulation 
of  the  land  and  naval  forces; 

15.  To  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrections,  and  repel  in- 
vasions ; 

16.  To  provide  for  organizing,  arming,  and  disciplining 
the  militia,  and  for  governing  such  part  of  them  as  may 
be  employed  in  the  service  of  the  United  States,  reserving 
to  the  States  respectively  the  appointment  of  the  officers 
and  the  authority  of  training  the  militia  according  to  the 
discipline  prescribed  by  Congress; 

17.  To  exercise  exclusive  legislation  in  all  cases  whatso- 
ever over  such  district  (not  exceeding  ten  miles  square)  as 
may,  by  cession  of  particular  States  and  the  acceptance  of 
Congress,  become  the  seat  of  the  government  of  the  United 
States,  and  to  exercise  like  authority  over  all  places  pur- 
chased by  the  consent  of  the  legislature  of  the  State  in 
which  the  same  shall  be,  for  the  erection  of  forts,  maga- 
zines, arsenals,  dock-yards,  and  other  needful  buildings; 
and, 

18.  To  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all 
other  powers  vested  by  this  Constitution  in  the  government 
of  the  United  States,  or  in  any  department  or  officer  thereof. 

Section  9. — i.  The  migration  or  importation  of  such 
persons  as  any  of  the  States  now  existing  shall  think  proper 
to  admit,  shall  not  be  prohibited  by  the  Congress  prior  to 
the  year  one  thousand  eight  hundred  and  eight,  but  a  tax 
or  duty  may  be  imposed  on  such  importation,  not  exceeding 
ten  dollars  for  each  person. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not 


APPENDIX  417 

be  suspended,  unless  when  in  cases  of  rebellion  or  invasion 
the  public  safety  may  require  it. 

3.  No  bill  of  attainder  or  ex  post  facto  law  shall  be 
passed. 

4.  No  capitation  or  other  direct  tax  shall  be  laid,  unless 
in  proportion  to  the  census  or  enumeration  hereinbefore 
directed  to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from 
any  State.  No  preference  shall  be  given  by  any  regulation 
of  commerce  or  revenue  to  the  ports  of  one  State  over 
those  of  another;  nor  shall  vessels  bound  to  or  from  one 
State  be  obliged  to  enter,  clear,  or  pay  duties  in  another. 

6.  No  money  shall  be  drawn  from  the  treasury  but  in 
consequence  of  appropriations  made  by  law ;  and  a  regular 
statement  and  account  of  the  receipts  and  expenditures  of 
all  public  money  shall  be  published  from  time  to  time. 

7.  No  title  of  nobility  shall  be  granted  by  the  United 
States ;  and  no  person  holding  any  office  of  profit  or  trust 
under  them,  shall,  without  the  consent  of  the  Congress, 
accept  of  any  present,  emolument,  office,  or  title,  of  any 
kind  whatever,  from  any  king,  prince,  or  foreign  state. 

Section  10. — i.  No  State  shall  enter  into  any  treaty, 
alliance,  or  confederation;  grant  letters  of  marque  and 
reprisal;  coin  money;  emit  bills  of  credit;  make  anything 
but  gold  and  silver  coin  a  tender  in  payment  of  debts ;  pass 
any  bill  or  attainder,  ex  post  facto  law,  or  law  impairing 
the  obligation  of  contracts,  or  grant  any  title  of  nobility. 

2.  No  State  shall,  without  the  consent  of  the  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports  except  what 
may  be  absolutely  necessary  for  executing  its  inspection 
laws:  and  the  net  produce  of  all  duties  and  imposts  laid  by 
any  State  on  imports  or  exports,  shall  be  for  the  use  of  the 
treasury  of  the  United  States;  and  all  such  laws  shall  be 
subject  to  the  revision  and  control  of  the  Congress.  No 
State  shall,  without  the  consent  of  Congress,  lay  any  duty  of 
tonnage,  keep  troops  or  ships  of  war  in  time  of  peace,  enter 
into  any  agreement  or  compact  with  another  State  or  with  a 
foreign  power,  or  engage  in  war.  unless  actually  invaded, 
or  in  such  imminent  danger  as  will  not  admit  of  delay. 
28 


4i8  FEDERAL   USURPATION 

ARTICLE  II.  Section  i. — i.  The  executive  power 
shall  be  vested  in  a  President  of  the  United  States  of 
America.  He  shall  hold  his  office  during  the  term  of  four 
years,  and,  together  with  the  Vice  President,  chosen  for 
the  same  term,  be  elected  as  follows: 

2.  Elach  State  shall  appoint,  in  such  manner  as  the  leg- 
islature thereof  may  direct,  a  number  of  Electors  equal  to 
the  whole  number  of  Senators  and  Representatives  to  which 
the  State  may  be  entitled  in  the  Congress ;  but  no  Sen- 
ator or  Representative,  or  person  holding  an  office  of  trust 
or  profit  under  the  United  States,  shall  be  appointed  an 
Elector. 

Clause  5  has  been  superseded  by  the  I2th  Article  of 
Amendments. 

4.  The  Congress  may  determine  the  time  of  choosing 
the  Electors,  and  the  day  on  which  they  shall  give  their 
votes;  which  day  shall  be  the  same  throughout  the  United 
States. 

5.  No  person,  except  a  natural-bom  citizen,  or  a  citizen 
of  the  United  States  at  the  time  of  the  adoption  of  this 
Constitution,  shall  be  eligible  to  the  office  of  President; 
neither  shall  any  person  be  eligible  to  that  office  who  shall 
not  have  attained  to  the  age  of  thirty-five  years,  and  been 
fourteen  years  a   resident   within   the   United   States. 

6.  In  case  of  the  removal  of  the  President  from  office, 
or  of  his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  said  office,  the  same  shall  devolve  on 
the  Vice  President;  and  the  Congress  may  by  law  provide 
for  the  case  of  removal,  death,  resignation,  or  inability, 
both  of  the  President  and  Vice  President,  declaring  what 
officer  shall  then  act  as  President,  and  such  officer  shall 
act  accordingly,  until  the  disability  be  removed  or  a  Presi- 
dent shall  be  elected. 

7.  The  President  shall,  at  stated  times,  receive  for  his 
services  a  compensation,  which  shall  neither  be  increased 
nor  diminished  during  the  period  for  which  he  shall  have 
been  elected,  and  he  shall  not  receive  within  that  period 
any  other  emolument  from  the  United  States,  or  any  of 
them. 


APPENDIX 


419 


8.  Before  he  enter  on  the  execution  of  his  office,  he 
shall  take  the  following  oath  or  affirmation: 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully 
execute  the  office  of  President  of  the  United  States,  and 
will,  to  the  best  of  my  ability,  preserve,  protect,  and  defend 
the  Constitution  of  the  United  States." 

Section  2. — i.  The  President  shall  be  commander  in 
chief  of  the  army  and  navy  of  the  United  States,  and  of 
the  militia  of  the  several  States  when  called  into  the  actual 
service  of  the  United  States;  he  may  require  the  opinion, 
in  writing,  of  the  principal  officer  in  each  of  the  executive 
departments,  upon  any  subject  relating  to  the  duties  of 
their  respective  offices,  and  he  shall  have  power  to  grant 
reprieves  and  pardons  for  offenses  against  the  United 
States,  except  in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties,  provided  two  thirds 
of  the  Senators  present  concur;  and  he  shall  nominate,  and 
by  and  with  the  advice  and  consent  of  the  Senate,  shall 
appoint  Embassadors,  other  public  Ministers  and  Consuls, 
Judges  of  the  Supreme  Court,  and  all  other  officers  of  the 
United  States,  whose  appointments  are  not  herein  other- 
wise provided  for,  and  which  shall  be  established  by  law; 
but  the  Congress  may  by  law  vest  the  appointment  of  such 
inferior  officers  as  they  think  proper,  in  the  President  alone, 
in  the  Courts  of  law,  or  in  the  heads  of  Departments. 

3.  The  President  shall  have  power  to  fill  up  all  vacan- 
cies that  may  happen  during  the  recess  of  the  Senate,  by 
granting  commissions  which  shall  expire  at  the  end  of 
their  next  session. 

Section  3. — He  shall,  from  time  to  time,  give  to  the 
Congress  information  of  the  state  of  the  Union,  and  recom- 
mend to  their  consideration  such  measures  as  he  shall  judge 
necessary  and  expedient;  he  may,  on  extraordinary  occa- 
sions, convene  both  Houses,  or  either  of  them,  and  in  case 
of  disagreement  between  them  with  respect  to  the  time  of 
adjournment,  he  may  adjourn  them  to  such  time  as  he  shall 
think  proper;  he  shall  receive  Embassadors  and  other  public 
Ministers;  he  shall  take  care  that  the  laws  be  faithfully  ex- 


420  FEDERAL    USURPATION 

ecuted,  and  shall  commission  all  the  officers  of  the  United 
States. 

Section  4. — The  President,  Vice  President,  and  all  civil 
officers  of  the  United  States,  shall  be  removed  from  office 
on  impeachment  for,  and  conviction  of,  treason,  bribery,  or 
other  high  crimes  and  misdemeanors. 

ARTICLE  III.  Section  i. — The  judicial  power  of  the 
United  States  shall  be  vested  in  one  Supreme  Court,  and  in 
such  inferior  Courts  as  the  Congress  may  from  time  to 
time  ordain  and  establish.  The  Judges,  both  of  the  Su- 
preme and  inferior  Courts,  shall  hold  their  offices  during 
good  behavior,  and  shall,  at  stated  times,  receive  for  their 
services  a  compensation  which  shall  not  be  diminished  dur- 
ing their  continuance  in  office. 

Section  2. — i.  The  judicial  power  shall  extend  to  all 
cases  in  law  and  equity  arising  under  this  Constitution,  the 
laws  of  the  United  States,  and  treaties  made,  or  which  shall 
be  made,  under  their  authority ;  to  all  cases  affecting  Em- 
bassadors, other  public  Ministers,  and  Consuls ;  to  all  cases 
of  admiralty  and  maritime  jurisdiction ;  to  controversies  to 
which  the  United  States  shall  be  a  party ;  to  controversies 
between  two  or  more  States ;  between  a  State  and  citizens 
of  another  State ;  between  citizens  of  dififerent  States ;  be- 
tween citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States;  and  between  a  State,  or  the 
citizens  thereof,  and  foreign  states,  citizens,  or  subjects. 

2.  In  all  cases  affecting  Embassadors,  other  public  Min- 
isters, and  Consuls,  and  those  in  which  a  State  shall  be 
a  party,  the  Supreme  Court  shall  have  original  jurisdic- 
tion. In  all  the  other  cases  before  mentioned,  the  Supreme 
Court  shall  have  appellate  jurisdiction,  both  as  to  law  and 
fact,  with  such  exceptions  and  under  such  regulations  as 
the  Congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury;  and  such  trial  shall  be  held  in  the 
State  where  the  said  crimes  shall  have  been  committed ; 
but  when  not  committed  within  any  State,  the  trial  shall 
be  at  such  place  or  places  as  the  Congress  may  by  law 
have  directed. 


APPENDIX  421 

Section  3. — i.  Treason  against  the  United  States  shall 
consist  only  in  levying  war  against  them,  or  in  adhering 
to  their  enemies,  giving  them  aid  and  comfort.  No  person 
shall  be  convicted  of  treason  unless  on  the  testimony  of 
two  witnesses  to  the  same  overt  act,  or  on  confession  in 
open  court. 

2.  The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason,  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture,  except  during  the  life 
of  the  person  attainted. 

ARTICLE  IV.  Section  i.— Full  faith  and  credit  shall 
be  given  in  each  State  to  the  public  acts,  records,  and  ju- 
dicial proceedings  of  every  other  State.  And  the  Congress 
may,  by  general  laws,  prescribe  the  manner  in  which  such 
acts,  records,  and  proceedings  shall  be  proved,  and  the  effect 
thereof. 

Section  2. — i.  The  citizens  of  each  State  shall  be  en- 
titled to  all  privileges  and  immunities  of  citizens  in  the 
several  States. 

2.  A  person  charged  in  any  State  with  treason,  felony, 
or  other  crime,  who  shall  flee  from  justice,  and  be  found 
in  another  State,  shall,  on  demand  of  the  executive  au- 
thority of  the  State  from  which  he  fled,  be  delivered  up,  to 
be  removed  to  the   State  having  jurisdiction  of  the  crime. 

3.  No  person  held  to  service  or  labor  in  one  State,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may  be 
due. 

Section  3. — i.  New  States  may  be  admitted  by  the  Con- 
gress into  this  Union;  but  no  new  State  shall  be  formed 
or  erected  within  the  jurisdiction  of  any  other  State;  nor 
any  State  be  formed  by  the  junction  of  two  or  more  States, 
or  parts  of  States,  without  the  consent  of  the  legislatures 
of  the  States  concerned  as  well  as  of  the  Congress. 

2.  The  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the  ter- 
ritory or  other  property  belonging  to  the  United   States; 


422  FEDERAL    USURPATION 

and  nothing  in  this  Constitution  shall  be  so  construed  as 
to  prejudice  any  claims  of  the  United  States  or  of  any 
particular  State. 

Section  4. — The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  republican  form  of  government,  and 
shall  protect  each  of  them  against  invasion ;  and,  on  ap- 
plication of  the  legislature,  or  of  the  Executive  (when  the 
legislature  can  not  be  convened)  against  domestic  violence. 

ARTICLE  V. — The  Congress,  whenever  two  thirds  of 
both  Houses  shall  deem  it  necessary,  shall  propose  Amend- 
ments to  this  Constitution,  or,  on  the  application  of  the 
legislatures  of  two  thirds  of  the  several  States,  shall  call 
a  convention  for  prof)Osing  Amendments,  which,  in  either 
case,  shall  be  valid  to  all  intents  and  purposes  as  part  of 
this  Constitution,  when  ratified  by  the  legislatures  of  three 
fourths  of  the  several  States,  or  by  conventions  in  three 
fourths  thereof,  as  the  one  or  the  other  mode  of  ratifica- 
tion may  be  proposed  by  the  Congress:  provided,  that  no 
Amendment  which  may  be  made  prior  to  the  year  one 
thousand  eight  hundred  and  eight  shall  in  any  manner  af- 
fect the  first  and  fourth  clauses  in  the  ninth  section  of 
the  first  article;  and  that  no  State,  without  its  consent, 
shall  be  deprived  of  its  equal  suffrage  in  the  Senate. 

ARTICLE  VI. — I.  All  debts  contracted  and  engagements 
entered  into,  before  the  adoption  of  this  Constitution,  shall 
be  as  valid  against  the  United  States  under  this  Consti- 
tution as  under  the  Confederation. 

2.  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land ;  and 
the  judges  in  every  State  shall  be  bound  thereby,  anything 
in  the  constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding. 

3.  The  Senators  and  Representatives  before  mentioned, 
and  the  members  of  the  several  State  legislatures,  and  all 
executive  and  judicial  officers,  both  of  the  United  States 
and  of  the  several  States,  shall  be  bound  by  oath  or  affirma- 
tion to  support  this  Constitution ;  but  no  religious  test  shall 


APPENDIX  423 

ever  be   required  as  a  qualification  to  any  office  or  public 
trust  under  the  United  States. 

ARTICLE  VII. — The  ratification  of  the  Conventions  of 
nine  States  shall  be  sufficient  for  the  establishment  of  this 
Constitution  between  the  States  so  ratifying  the  same. 


AMENDMENTS   TO   THE    CONSTITUTION 

ARTICLE  I. — Congress  shall  make  no  law^  respecting 
an  establishment  of  religion,  or  prohibiting  the  free  exer- 
cise thereof;  or  abridging  the  freedom  of  speech  or  of  the 
press ;  or  the  right  of  the  people  peaceably  to  assemble, 
and  to  petition  the  government  for  a  redress  of  griev- 
ances. 

ARTICLE  II. — A  well-regulated  militia  being  necessary 
to  the  security  of  a  free  state,  the  right  of  the  people  to 
keep  and  bear  arms  shall  not  be  infringed. 

ARTICLE  III. — No  soldier  shall,  in  time  of  peace,  be 
quartered  in  any  house  without  the  consent  of  the  owner, 
nor  in  time  of  war,  but  in  a  manner  to  be  prescribed  by 
law. 

ARTICLE  IV. — The  right  of  the  people  to  be  secure  in 
their  persons,  houses,  papers,  and  efifects,  against  un- 
reasonable searches  and  seizures,  shall  not  be  violated,  and 
no  warrants  shall  issue,  but  upon  probable  cause,  sup- 
ported by  oath  or  affirmation,  and  particularly  describing 
the  place  to  be  searched,  and  the  persons  or  things  to  be 
seized. 

ARTICLE  V. — No  person  shall  be  held  to  answer  for 
a  capital  or  otherwise  infamous  crime,  unless  on  a  pre- 
sentment or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  militia  when 
in  actual  service  in  time  of  war  or  public  danger;  nor 
shall  any  person  be  subject  for  the  same  offense  to  be  twice 
put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in 
any  criminal  case  to  be  a  witness  against  himself;  nor  be 


424  FEDERAL    USURPATION 

deprived  of  life,  liberty,  or  property,  without  due  process 
of  law ;  nor  shall  private  property  be  taken  for  public  use 
without  just  compensation. 

ARTICLE  VI. — In  all  criminal  prosecutions,  the  ac- 
cused shall  enjoy  the  right  to  a  speedy  and  public  trial, 
by  an  impartial  jury  of  the  State  and  district  wherein  the 
crime  shall  have  been  committed,  which  district  shall  have 
been  previously  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation ;  to  be  confronted 
with  the  witnesses  against  him;  to  have  compulsory  process 
for  obtaining  witnesses  in  his  favor,  and  to  have  the  as- 
sistance of  counsel  for  his  defense. 

ARTICLE  VII. — In  suits  at  common  law  where  the 
value  in  controversy  shall  exceed  twenty  dollars,  the  right 
of  trial  by  jury  shall  be  preserved,  and  no  fact  tried  by 
a  jury  shall  be  otherwise  re-examined  in  any  Court  of  the 
United  States,  than  according  to  the  rules  of  the  common 
law. 

ARTICLE  VIII. — Excessive  bail  shall  not  be  required, 
nor  excessive  fines  imposed,  nor  cruel  and  unusual  punish- 
ments inflicted. 

ARTICLE  IX. — The  enumeration  in  the  Constitution  of 
certain  rights  shall  not  be  construed  to  deny  or  disparage 
others  retained  by  the  people. 

ARTICLE  X. — The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States  respectively,  or  to  the  people. 

ARTICLE  XI. — The  judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit  in  law  or 
equity,  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State,  or  by  citizens  or  sub- 
jects of  any  foreign  state. 

ARTICLE  XII. — The  electors  shall  meet  in  their  re- 
spective States,  and  vote  by  ballot  for  President  and  Vice 
President,  one  of  whom,  at  least,  shall  not  be  an  inhabi- 
tant of  the  same  State  with  themselves ;  they  shall  name 
in  their  ballots  the  person  voted  for  as  President,  and  in 
distinct  ballots  the  person  voted  for  as  Vice  President,  and 
they  shall  make  distinct  lists  of  all  persons  voted  for  as 


APPENDIX  425 

President,  and  of  all  persons  voted  for  as  Vice  President, 
and  of  the  number  of  votes  for  each,  which  lists  they  shall 
sign  and  certify,  and  transmit  sealed  to  the  seat  of  the 
government  of  the  United  States,  directed  to  the  Presi- 
dent of  the  Senate.  The  President  of  the  Senate  shall, 
in  the  presence  of  the  Senate  and  House  of  Representa- 
tives, open  all  the  certificates,  and  the  votes  shall  then  be 
counted ;  the  person  having  the  greatest  number  of  votes 
for  President  shall  be  the  President,  if  such  number  be  a 
majority  of  the  whole  number  of  Electors  appointed;  and 
if  no  person  have  such  majority,  then  from  the  persons 
having  the  highest  numbers,  not  exceeding  three,  on  the 
list  of  those  voted  for  as  President,  the  House  of  Repre- 
sentatives shall  choose  immediately,  by  ballot,  the  Presi- 
dent. But  in  choosing  the  President,  the  votes  shall  be 
taken  by  States,  the  representation  from  each  State  having 
one  vote;  a  quorum  for  this  purpose  shall  consist  of  a 
member  or  members  from  two  thirds  of  the  States,  and 
a  majority  of  all  the  States  shall  be  necessary  to  a  choice. 
And  if  the  House  of  Representatives  shall  not  choose  a 
President,  whenever  the  right  of  choice  shall  devolve  upon 
them,  before  the  fourth  day  of  March  next  following,  then 
the  Vice  President  shall  act  as  President,  as  in  the  case 
of  the  death  or  other  constitutional  disability  of  the  Presi- 
dent. The  person  having  the  greatest  number  of  votes  as 
Vice  President  shall  be  the  Vice  President,  if  such  number 
be  a  majority  of  the  whole  number  of  Electors  appointed; 
and  if  no  person  have  a  majority,  then  from  the  two 
highest  numbers  on  the  list  the  Senate  shall  choose  the 
Vice  President;  a  quorum  for  the  purpose  shall  consist 
of  two  thirds  of  the  whole  number  of  Senators,  and  a 
majority  of  the  whole  number  shall  be  necessary  to  a 
choice.  But  no  person  constitutionally  ineligible  to  the 
office  of  President  shall  be  eligible  to  that  of  Vice  Presi- 
dent of  the  United  States. 

ARTICLE  XHL— I.  Neither  Slavery  nor  involuntary 
servitude,  except  as  a  punishment  for  crime,  whereof  the 
party  shall  have  been  duly  convicted,  shall  exist  within  the 
United  States,  or  any  place  subject  to  their  jurisdiction. 


426  FEDERAL    USURPATION 

2.  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

ARTICLE  XIV. — I.  All  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside.  No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States;  nor  shall  any  State  deprive  any  person  of 
life,  liberty,  or  property,  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws. 

2.  Representatives  shall  be  apportioned  among  the  sev- 
eral States  according  to  their  respective  numbers,  counting 
the  whole  number  of  persons  in  each  State,  excluding  In- 
dians not  taxed.  But  when  the  right  to  vote  at  any  elec- 
tion for  the  choice  of  Electors  for  President  and  Vice 
President  of  the  United  States,  Representatives  in  Congress, 
the  executive  and  judicial  officers  of  a  State,  or  the  mem- 
bers of  the  legislature  thereof,  is  denied  to  any  of  the  male 
inhabitants  of  such  State,  being  twenty-one  years  of  age, 
and  citizens  of  the  United  States,  or  in  any  way  abridged, 
except  for  participation  in  rebellion  or  other  crime,  the 
basis  of  representation  therein  shall  be  reduced  in  the  pro- 
portion which  the  number  of  such  male  citizens  shall  bear 
to  the  whole  number  of  male  citizens  twenty-one  years  of 
age  in  such  State. 

3.  No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  Elector  of  President  or  Vice  President,  or  hold 
any  office,  civil  or  military,  under  the  United  States,  or 
under  any  State,  who,  having  previously  taken  an  oath, 
as  a  member  of  Congress,  or  as  an  officer  of  the  United 
States,  or  as  a  member  of  any  State  legislature,  or  as  an 
executive  or  judicial  officer  of  any  State,  to  support  the 
Constitution  of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given  aid  or 
comfort  to  the  enemies  thereof.  But  Congress  may,  by  a 
vote  of  two  thirds  of  each  House,  remove  such  disability. 

4.  The  validity  of  the  public  debt  of  the  United  States, 
authorized   by   law,   including   debts    incurred   for  payment 


APPENDIX  427 

of  pensions  and  bounties  for  services  in  suppressing  insur- 
rection or  rebellion,  shall  not  be  questioned.  But  neither 
the  United  States  nor  any  State  shall  assume  or  pay  any 
debt  or  obligation  incurred  in  aid  of  insurrection  or  re- 
bellion against  the  United  States,  or  any  claim  for  the 
loss  or  emancipation  of  any  slave;  but  all  such  debts,  ob- 
ligations, and  claims  sh^U  be  held  illegal  and  void. 

5.  The  Congress  shall  have  power  to  enforce,  by  appro- 
priate legislation,  the  provisions  of  this  article. 

ARTICLE  XV.— I.  The  right  of  citizens  of  the  United 
States  to  vote  shall  not  be  denied  or  abridged  by  the  United 
States,  or  by  any  State,  on  account  of  race,  color,  or 
previous  condition  of  servitude. 

2.  The  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 


INDEX 


INDEX 


Abandoned  Property  Acts,  uncon- 
stitutionality of,  71,  72. 

Administrative  Courts,  in  France, 
371,  372;  in  Prussia,  372,  373. 

Administrative  Law,  increasing  im- 
portance of,  345;  description  of, 
345»  346;  Ju  Toy  Case,  347-354; 
stoppage  of  mail,  335-363;  ex- 
amples of,  366—370;  rapid  in- 
crease of,  and  great  danger  from, 

373,  374. 

Agricultural  Department,  proposed 
college  voted  down  in  Constitu- 
tional Convention,  128;  distribu- 
tion of  seeds  by,  129;  irrigation 
laws  and  geological  survey,  129; 
history  of,  182;  exercise  of  pow- 
ers of,  without  constitutional 
warrant,  182-187. 

Alien  and  Sedition  Laws,  34-36. 

Aliens,  treaty  rights  of,  260. 

Amendments  to  Constitution, 
thirteenth,  26;  fourteenth,  27,  28; 
fifteenth,  28. 

Annapolis  Convention,  13,  14. 

Atkinson,  Edward,  pamphlets  to 
Philippines  stopped  by  Post 
Office,  356-358. 

Bailey,    Senator,    on    exercise    of 

arbitrary  power  by  courts,  237. 
Bank  of  United  States,  22,  23. 
Bismarck,  304. 
Blaine,  James  G.,  disagreement  of. 


with    Baron    Fava    over    New 

Orleans  riot,  258,  259. 
Brewer,  Justice,  difficulty  for  courts 

to  fix  rates,  236,  237;  Debs  Case, 

260,  261. 
Brownsville  alTair,  114-118. 

Calhoun,  John  C,  treaty  power, 
251,  252;  antislavery  literature 
in  mails,  356. 

California,  school  law  of  1903,  261, 
262. 

Centralization,  National  Bank  sys- 
tem and  protective  tariffs,  52-57; 
French  centralization,  152-154; 
centralized  government  from 
Washington,  193. 

Chase,  Chief  Justice,  opinion  on 
effect  of  secession,  58. 

Civil  Rights  Bill,  declared  uncon- 
stitutional, 66,  67. 

Civil  War,  41,  42;  era  of  centraliza- 
tion, 52-57. 

Colorado,  abuse  of  use  of  injunc- 
tions, 334;  corrupt  and  arbitrary 
government,  335. 

Commerce,  foreign  and  interstate, 
before  the  Constitution,  10;  im- 
portance of  free  trade  between 
the  states,  302. 

Commercial  spirit,  danger  from, 
380-382. 

Commissions,  government  by,  311— 
319;  chairmen  of  committees  act 
431 


432 

as  attorneys  for,  315,  316;  bene- 
fits of,  319;  objections  to,  319- 
321 ;  rapid  growth  of,  346. 

Confiscation  Act,  51,  52. 

Congress,  delay  in  remedial  legis- 
lation, 103,  104;  constructive 
recess,  119;  extravagant  ex- 
penditures, 130,  148,  149,  170, 
171;  government  of  the  Philip- 
pines, 172;  difficulty  of  passing 
laws,  180;  riders  to  appropria- 
tion bills,  191,  192. 

Connecticut,  10;  numerous  com- 
missions, 316;  commissioners  as 
lobbyists,  316;  Governor  Wood- 
ruff on  commissions,  316;  its 
rotten  borough  system,  317;  cor- 
ruption among  native  popula- 
tion, 317;  trial  by  jury  greatly 
impaired,  332,  333. 

Constitution,  veneration  of,  3,  36, 
37,  207-209;  its  undemocratic 
character,  4;  causes  of  such 
character,  7-13;  difficulty  of 
amendment,  5,  6;  separation  of 
legislative,  executive,  and  judi- 
cial departments,  15,  16,  86,  87; 
powers  granted  Congress,  22; 
prohibitions  upon  states,  23; 
concurrent  powers  of  states  and 
nation,  23,  24;  no  inherent  pow- 
ers, 24;  executive  and  judicial 
powers,  25;  amendments  to,  25- 
27;  sources  of,  29-31,  33,  34. 

Constitutional  Convention,  charac- 
ter of  members,  14,  15;  Virginia 
plan,  16;  New  Jersey  plan,  16, 
17;  compromise  as  regards  com- 
merce and  slavery,  17,  18;  dis- 
cussion of  executive  power,  18, 
19. 


INDEX 


Cortelyou,  Postmaster  -  General, 
fraud  orders,  355,  359,  361. 

Democratic  government,  opinions 
of  the  framers  of  the  Constitu- 
tion, 12,  13;  how  to  return  to 
democratic  government,  377- 
380,  387-389. 

De  Tocqueville,  value  of  local  self- 
government,  310. 

Dictator,  danger  of,  403. 

Farrar,  Edward  H.,  power  to  ac- 
quire railroads  included  under 
that  of  establishing  post  roads, 
291-294. 

Federal  election  laws,  68,  69; 
marshals  supervise  polls  in 
North,  69. 

Franklin,  Benjamin,  19,  277. 

Fraud  orders,  stoppage  of  mail, 
335-363;  kind  of  trial  afforded, 
358-364;  opinions  of  Parisian 
journals,  365,  366. 

Fuller,  Chief  Justice,  dissenting 
opinion  in  Lottery  Case,  297, 
298. 

Gallatin,    Albert,   construction   of 

commerce  clause,  278. 
Gerry,  Elbridge  T.,  12. 

Habeas  Corpus,  writ  suspended  by 
Lincoln,  42,  44;  many  arrests, 
43,  45;  suspension  held  uncon- 
stitutional, 43;  decision  ignored, 
43 ;  historical  associations  of  writ, 
44;  indignation  at  suspension 
in  the  North,  46,  47;  Act  of 
Indemnity  for  President,  47; 
grounds   of   arrests,    48;   court- 


INDEX 


433 


martial  trials  declared  uncon- 
stitutional, 48,  50. 

Hamilton,  Alexander,  12,  14;  on 
state  rights,  105. 

Harlan,  Justice,  dissenting  opinion 
in  Mankichi  Case,  230;  Lottery 
Case,  299. 

House  of  Representatives,  com- 
parison with  popular  branch  in 
other  countries,  159-162;  causes 
of  its  decline,  162-174;  the 
Speaker,  163,  167,  168;  secret 
committees,  163;  responsibility 
of  members  destroyed,  164; 
public  discussion  abandoned, 
164,  180,  181;  multitude  of  bills 
and  resolutions,  165,  166,  169, 
170;  Committee  on  Rules,  167; 
hasty  and  ignorant  legislation, 
171,  172;  ambition  of  members 
stifled,  173;  little  publicity  given 
to  proceedings,  174. 

Imperialism,  McKinley's  nomina- 
tion, 139;  inconsistent  with  free 
government,  140-143,  148;  pro- 
ductive of  socialism,  144;  char- 
acteristics, 145,  155;  productive 
of  monarchical  customs  and 
forms,  151,  152. 

Income  Tax  Cases,  220-226;  Wilson 
Bill,  220;  Hilton  v.  U.  S.,  221; 
Springer  v.  U.  S.,  222;  diflterent 
income  taxes  in  our  history,  222; 
the  injustice  of  the  last  decision, 
224,  225;  talk  of  reversal,  225, 
226. 

Injunctions,  government  by,  232- 
237;  crimes  punished  by  con- 
tempt proceedings,  233,  234;  en- 
forcement of  state  laws  enjoined, 
29 


235,  236;  difficulty  of  courts  to 
fix  rates,  236,  237. 

Insurance,  contracts  for,  not  inter- 
state commerce,  302,  303. 

Interstate  Commerce  Clause,  dan- 
gerous because  undefined,  269; 
construction  of  President  Roose- 
velt, 270;  state  rights  were  in- 
tended to  be  preserved,  270, 
271;  right  to  commerce  has  al- 
ways existed,  272;  must  be  con- 
strued by  conditions  when  made, 
272-277;  proposed  national  stat- 
utes, 280,  281;  Employers'  Lia- 
bility Act,  284-289;  same  de- 
clared unconstitutional,  286, 
note;  Child  Labor  Law,  289- 
291;  Lottery  Case,  294-301; 
Pure  Food  Law,  296. 

Irrigation,  appropriations  for,  un- 
constitutional, 187,  188. 

Italy,  killing  of  Italians  at  New 
Orleans,  258. 

Jackson,  Andrew,  dictates  succes- 
sor, 120;  construction  of  inter- 
state commerce  clause,  279;  anti- 
slavery  literature  in  the  mails, 
356- 

Jefferson,  Thomas,  letter  on  the 
"sweeping  clause,"  192. 

Johnson,  Andrew,  follows  Lincoln's 
policy  toward  the  South,  58; 
opinion  of  Reconstruction 
Act,  60;  Tenure  of  Office  Act, 
64,  65. 

Jury  trials,  former  conclusiveness 
of  verdicts,  328;  now  only  ad- 
visory to  the  appellate  courts, 
328,  329;  even  three  verdicts  not 
sufficient,  329,  330;  wisdom  of, 


434 


INDEX 


332;  danger  of  requiring  unani- 
mous verdicts,  332. 
Ju  Toy  Case,  347-354- 

Ku  Klux  Law,  65;  declared  uncon- 
stitutional, 66. 

Lansing,  James,  view  of  treaty 
power,  250. 

Legal  Tender  Cases,  212-219; 
position  of  Secretary  Chase,  213, 
214;  held  unconstitutional,  214; 
Woodrow  Wilson  on  appoint- 
ments of  Strong  and  Bradley, 
215;  reargument,  law  declared 
constitutional,  216;  favorable  ef- 
fect of  first  decision,  217;  Legal 
Tender  Act  of  1878  held  con- 
stitutional, 218. 

Lieber,  Francis,  value  of  local 
self-government,  310. 

Lincoln,  Abraham,  42-44;  con- 
cedes violation  of  Constitution, 
50,  5 1 ;  opinion  of  effect  of  seces- 
sion, 57,  58;  immortality  of,  386. 

Local  self-government,  30-33,  309; 
destroyed  in  France,  309,  310; 
decline  in  the  United  States,  310, 
311;  the  best  government,  320; 
deprivation  of,  unconstitutional, 
318. 

Lottery  Case,  invasion  of  state 
police  powers,  294-301;  its  great 
importance,  298,  299. 

Louisiana  Legislature,  arrest  of 
members  by  United  States  troops, 
70,  71. 

Madison,  James,  7,  12;  construc- 
tion of  commerce  clause,  278. 
Mankichi  Case,  226-232. 


Marshall,  Chief  Justice,  94,  206, 
207,  259,  296,  297. 

Mason,  George,  12,  34,  37. 

Massachusetts,  12,  17;  system  of 
commissions,  311,312;  Governor 
Russell    on    commissions,    312, 

313- 

McKinley,  William,  nomination  in 
1896, 139;  Congress  appropriates 
$50,000,000  for  his  discretionary 
use,  189,  190. 

Mexico,  its  constitution  copied 
from  ours,  336;  arbitrary  govern- 
ment, 336. 

Michigan,  government  of  Detroit  by 
legislature,  324. 

Miller,  Justice,  state  rights,  106, 
210. 

Monroe,  James,  construction  of  in- 
terstate commerce  clause,  279. 

Montesquieu,  15,  16. 

Morris,   Gouverneur,    12,   20,   21, 


National  Bank  system,  52-55. 
Negligence,  terrible  slaughter  by, 

333- 

New  Hampshire,  extent  of  com- 
missions, 317,  318. 

New  Jersey,  10. 

New  York,  10,  13,  14;  government 
by  commissions,  313-316;  bi- 
partisan police  and  fire  com- 
missions declared  unconstitu- 
tional, 323. 

New  York  City,  John  Doe  warrants 
and  arbitrary  government,  335. 

North  Carolina,  11,  12. 

Olney,  Richard,  construction  of 
Japanese  treaty,  261-264. 


INDEX 


435 


Panama,  taking  of,  111-114;  ad- 
ministration of  law,  336. 

Party  government,  4,  5. 

Paternalism,  31-33;  churches  seek 
President's  advice,  125;  banks 
rely  on  Treasury  deposits,  126; 
Keep  Commission,  126;  Presi- 
dent's advice  sought  on  all  sub- 
jects, 127;  effects  upon  the  peo- 
ple, 128;  industrial  training  and 
schools,  130,  131;  Shaw's  ad- 
ministration of  the  Treasury, 
131-133;  destructive  of  citizen- 
ship, 134, 135;  Department  of  Ag- 
riculture, 188,  189;  compulsory 
insurance  by  the  state,  192,  193. 

Pennsylvania,  10,  11,  14;  "ripper" 
bills,  321;  ancient  council  of 
censors,  322;  state  house,  323. 

Philippines,  deprived  of  constitu- 
tional safeguards,  35,  note;  150, 
151,  230-232;  cost  and  real 
value,  141,  142. 

Pinckney,  Charles,  18. 

Post  offices  and  roads,  power  to 
establish,  291,  292. 

President,  more  powerful  than  any 
constitutional  monarch,  79-83 ; 
popular  election  no  check  on 
power,  84-86;  influence  over 
judiciary,  89,  90;  proposed  law 
for  removal  of  judges,  93. 

Property,  held  more  sacred  than 
life,  333,  337;  more  sacred  than 
liberty,  353,  354. 

Protective  tariffs,  17,  18,  56,  57; 
race  suicide,  135-139. 

Pure  Food  Law,  296. 

Race  suicide,  135-139. 
Railroads,  corruption  by,  283,  284. 


Randolph,  Edmund,  12;  interstate 
commerce,  277,  278. 

Reconstruction  Period,  59—61; 
usurpation  of  generals.  Sickles, 
61,  62;  Pope,  62;  Sheridan,  62; 
Ord,  63;  McCardle  Case,  63,  64; 
ironclad  oaths  unconstitutional, 
67,  68;  number  of  acts  declared 
unconstitutional,  72,  73;  terrible 
conditions,  73,  74;  bitter  parti- 
sanship of  Congressional  leaders, 

74,  75- 

Remedies  for  Constitutional  de- 
fects, an  easier  method  for 
amending  the  Constitution,  389; 
abolish  government  by  com- 
mittees, 390;  make  House  of 
Representatives  supreme  in  legis- 
lation, 392;  representation  of 
Departments  in  Congress,  as  in 
England,  393,  394;  public  dis- 
cussion of  all  bills,  394-396;  pro- 
hibit private  and  pension  bills, 
395;  abolish  four  years  limit  on 
appointments,  398;  extend  civil 
service,  399;  elect  senators  by 
popular  vote,  399,  400;  change 
second  session  of  Congress,  400, 
401;  stop  extravagant  expendi- 
tures, 402  ;  adopt  referendum 
for  state  and  city  governments, 
404, 405. 

Reserved  rights  of  states,  26. 

Rhode  Island,  11,  17;  rotten  town 
system,  317. 

River  and  Harbor  Bill  of  1907,  130. 

Roosevelt,  Theodore,  Harrisburg 
speech,  87,  88;  influence  over 
judiciary,  89,  90,  95;  criticisms 
of  United  States  Supreme  Court, 
90-92;     criticisms     of     district 


436 


INDEX 


judges,  92-94;  proposed  law  for 
removal  of  judges,  93;  attempted 
control  of  Congress,  96-98; 
comparison  with  Kaiser,  82,  83, 
89;  pension  order  of  1904,  107- 
109;  receivership  of  the  San 
Domingo  customs,  109— 1 1 1 ;  tak- 
ing of  Panama,  111-114;  the 
Brownsville  affair,  114-118;  the 
constructive  recess,  118,  119; 
excuses  for  usurpation,  119; 
dictating  successor,  120,  121; 
Sioux  Falls  speech,  128;  Message 
of  1906  on  irrigation,  129;  race 
suicide,  135  -  139  ;  arbitrary 
methods,  154;  construction  of 
interstate  commerce  claxise,  270; 
recommends  allowing  railroads 
to  make  pooling  agreements, 
282,  283;  approves  Judge  Far- 
Tar's  letter,  304,  305 ;  interference 
with  state  affairs,  340,  341. 
Root,  Elihu,  5, 6, 88,  89,  99,  100. 

San  Domingo  receivership,  log- 
in. 

Senate,  intended  to  represent 
property,  174,  175;  filled  with 
monopolists,  175;  alliance  with 
President  destroys  balances  of 
government,  176;  usurps  House's 
right  to  originate  revenue  bills, 
176-178;  dictates  President's  ap- 
pointments, 1 78;  holds  Represen- 
tatives in  vassalage,  178;  makes 
treaties,  178,  179;  members  are 
heads  of  state  political  machines, 

179- 

Shaw,  Leslie  M.,  paternal  manage- 
ment of  Treasury,  131-133. 

Sherman,   Roger,    12. 


South  Carolina,  17;  centralized 
government  under  dispensary 
law,  318. 

State  Conventions  to  adopt  Con- 
stitution, 21,  22. 

State  Courts,  former  conclusive- 
ness of  verdicts,  328;  now  only 
advisory  to  ap}}ellate  courts,  328, 
329;  even  three  verdicts  not 
sufficient,  329,  330;  reversals  for 
technical  errors,  330;  the  law's 
delay,  330,  331;  lynching  a  result 
therefrom,  331,  332. 

State  legislation,  recent  activity, 
100-103;  comparison  with  Con- 
gress, 103,  104;  legislation  by 
committees,  324,  325;  biennial 
sessions,  325,  326;  overlegisla- 
tion,  326;  manufacturing  inter- 
ests exempted  from  taxation,  327; 
careless  enactment,  337;  propertj 
more  sacred  than  life,  333,  337; 
remedies  for  abuses,  339. 

State  Rights,  4;  opinions  of  Wilson, 
104;  Hamilton,  105;  Chief  Justice 
Chase,  105,  106;  Justice  Miller, 
106;  recent  opinion  of  Supreme 
Court  in  Kansas  v.  Colorado, 
106,  107. 

Stevens,  Thaddeus,  58,  59. 

Sumner,  Charles,  302. 

Treaty  Power,  its  importance,  241; 
controlling  upon  states,  242 ;  pro- 
posed by  Luther  Martin,  242; 
to  overcome  prior  disregard  of 
states  for  treaties,  243—247;  the 
law  of  the  land,  247-250; 
opinion  of  Calhoun,  251,  252; 
same  rule  under  Confederation, 
254;  decisions  unanimous  against 


INDEX 


437 


state  rights,  255;  Mr.  Butler's 
views,  256;  state  rights  opinion, 
257;  liberal  construction  toward 
aliens,  258,  261 ;  Asiatic  territory, 
264,  265. 
Trusts,  power  of  states  to  suppress, 
338;  oppression  under,  386,  387; 
destruction  of,  397;  remedy  for, 
406,  407. 

United  States  Militia  Bill,  146-148. 

United  States  Supreme  Court, 
arbiterjbetween  nation  and  states, 
106,  209,  210;  coordinate  branch 
of  government,  197;  can  declare 
national  or  state  statutes  uncon- 
stitutional, 197;  controls  all  with- 
out being  controlled,  198,  199; 
its  supreme   power   questioned, 

199,  note  3;  no  court  in  any  other 
country    exercises    such    power, 

200,  201;  sources  of  its  power, 
202-205;  decisions  on  constitu- 
tionaHty  influenced  by  political 
opinions,  206,  212;  increasing 
power  by  construction,  211,  212; 
Legal  Tender  cases,    212-219; 


Income  Tax  cases,  220—226;  un- 
certainty of  decisions,  223,  224; 
Mankichi  Case,  226-232;  gov- 
ernment by  injunctions,  232-237. 
Usurpation,  hidden  by  checks  and 
balances  of  government,  3,  4,  6, 
180,  181 ;  Lincoln  concedes  viola- 
tion of  Constitution,  50,  51; 
acts  of  Generals  in  Reconstruc- 
tion Period,  61-63;  excuses  for 
Roosevelt's  action,  119;  sus- 
pension of  statutes,  190,  191. 

Van  Buren,  Martin,  estimate  of 
United  States  Supreme  Court, 
197. 

Virginia,  10,  11,  12,  14. 

Washington,  George,  384. 

Watterson,  Henry,  385. 

White,  Andrew  D.,  dangers  of  com- 
mercialism, 380. 

Williams,  John  S.,  public  opinion, 
382,  383- 

Wilson,  James,  18;  on  state  rights, 
104. 

Wilson,  Woodrow,  208,  215. 


a) 


A  VALUABLE  FINANCL\L  BOOK. 


Financial  Crises 

And  Periods  of  Industrial  and  Commercial  Depression. 
With  Diagrams,  Bibliography,  and  Index,  By  Theodore 
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AN  IMPORTANT  FINANCIAL  WORK. 

Clearing  Houses. 

Their  History,  Methods,  and  Administration.  By 
James  G.  Cannon,  Vice-President  of  the  Fourth 
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trated.    Crown  8vo.     Cloth,  $2.50. 

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and  in  bringing  all  the  various  matters  connected  with  the  clearing  house  into 
one  volume  Mr.  Cannon  has  made  a  contribution  to  the  general  literature  of 
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tier*  for  the  collection  of  interior  checks." — ylmerican  Banker. 

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rate history  of  the  general  subject,  but  for  a  variety  of  special  information  which 
the  banker  of  the  present  day  can  not  afford  to  be  without." — Neiv  York 
Journal  of  Commerce. 

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TWENTIETH  CENTURY  TEXT-BOOKS. 

First  Lessons  in  Finance. 

By  Frederick  A.  Cleveland,  Ph.D.,  of  the 
Wharton  School  of  Finance  and  Economy, 
University  of  Pennsylvania.  With  many  illus- 
trations.    1 2 mo.     Cloth,  $1.25. 

Dr.  Cleveland's  purpose  is  to  give  a  preliminary  survey, 
to  mark  out  the  ground,  and  establish  lines  for  future  de- 
velopment. Looking  upon  the  subject  as  one  which  has  to 
do  with  the  getting  and  spending  of  funds  for  private  enter- 
prise, the  materials  are  grouped  around  three  central  ideas, 
viz.:  (i)  What  Are  Funds?  (2)  How  Funds  Are  Obtained;  and 
(3)  Institutions  and  Agents  Employed  in  Funding  Operations. 
In  Part  I  the  various  forms  of  money  and  credit  used  as  funds 
and  the  means  of  transfer  of  credit  funds  are  discussed. 
An  understanding  of  the  nature  of  funds  is  regarded  as 
fundamental.  Part  II,  which  has  for  its  subject  "How  Funds 
Are  Obtained,"  divides  modern  funding  methods  into  two 
classes,  namely:  (i)  The  methods  of  the  industrially  and 
socially  dependent,  and  (2)  The  methods  of  the  industrially 
and  socially  independent. 

In  business  there  is  but  one  way  of  obtaining  funds — 
that  is,  to  have  something  to  sell,  something  for  which  those 
having  funds  are  willing  to  exchange  them.  To  this  method 
several  chapters  are  given.  Those  without  capital  or  other 
property  must  resort  to  sales  of  labor.  The  financial  problem 
of  the  wage-earner,  the  limitations  of  the  laborer,  the  advan- 
tages of  education  and  industrial  training,  and  savings  as  a 
means  of  obtaining  industrial  capital  are  some  of  the  im- 
portant considerations  discussed. 

Another  edition  of  this  work  is  published  as  a  volume  in 
Appletons'  Business  Series  under  the  title  of  "  Funds  and 
Their  Uses." 

D.     APPLETON     AND     COMPANY, 

NEW  YORK.  BOSTON.  CHICAGO.  LONDON. 


A  PRACTICAL  BOOK  BY  A  PRACTICAL  MAN. 


The  Work  of  Wall  Street. 

By  Sereno   S.    Pratt.      i2mo.      Cloth,  $1.25   net; 
postage,  12  cents  additional. 

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or  tastes  include  the  works  of  such  writers  as  Bryce,  Jevons,  Sumner, 
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"  It  has  no  equal." — New  York  Press, 

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D,    APPLETON     AND     COMPANY,     NEW    YORK. 


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